Originally from ADR and the Law - 21st Edition

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On April 29, 2004, two members of an arbitral tribunal, Professor Piero Bernardini, and Mr. Daniel Price rendered a majority decision on jurisdiction (the Decision) in the arbitration case Tokios Tokelës v. Ukraine,  which arose under a bilateral investment treaty (the BIT) between Ukraine and Lithuania.  The Decision held that the Claimant was a Lithuanian national because it was incorporated in Lithuania, even though it was controlled by nationals of Ukraine (the Host State). Thus, a majority of arbitrators found that the International Centre for the Settlement of Investment Disputes (the ICSID or the Centre) had jurisdiction to hear the claims under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of March 18, 1965 (the ICSID Convention or the Convention).  The majority’s decision resulted in tribunal president Prosper Weil issuing a dissenting opinion (the Dissent) which focused on the issue of how corporate nationality should be defined for the purpose of ascertaining jurisdiction under the ISCID Convention, given the Convention’s objectives.