Commentators frequently remark on the similarities between the provisions of the approximately 3,000 international investment agreements (“IIAs”) that have been concluded over the past three decades. While such IIAs are similar in many respects they differ considerably in the approach taken to certain specific issues. One such area concerns the language defining the term “investor.” This comment will outline some of the principal differences in the approaches that States have taken to the definition of investors, the case law that is illustrative of the problems that have arisen and the restrictions that the ICSID Convention places upon the definition of investors.
It is generally recognized that all IIAs define the parties who stand to benefit from the treaty: most of them use the term “investors” but some use the term “nationals.” IIAs are also consistent in drawing a distinction between, on the one hand, individuals or natural persons, and on the other hand, companies and other juridical entities. Some more recent treaties include the government of one of the State Parties in the definition of investor. This comment will discuss all three categories of investors.