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Micula v. Romania

Type of decisionDecision on Jurisdiction and Admissibility
Date of decision24 September 2008
Tribunal
Laurent Lévy (President)
Claus-Dieter Ehlermann
Stanimir Alexandrov
Legal instrumentBIT between Romania and Sweden (2002)
Further information

Statements from this decision

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In interpreting IITs, any relevant rules of international law may be taken into account according to Articles 31 (3)(c) of the VCLT
Restitution can be claimed in ICSID proceedings
The State conferring nationality enjoys a margin of appreciation in determining the criteria of nationality
While it is a general principle that it is for each state to decide in accordance with its law who is its national, it is also well established that the acquisition of nationality must not be inconsistent with international law, i.e. based on fraud or material error
In determining nationality, one must be mindful of Article 15 of the Universal Declaration of Human Rights
In case of a single nationality, considerations of effectiveness regarding the opposability of that nationality do not arise regarding the definition of nationality under an IIT
The burden of proving that nationality was acquired in a manner inconsistent with international law lies with the party challenging the nationality
Companies incorporated in the host state or having their head office there can still be investors if the treaty provides for control as a relevant test
The IIT may provide that the critical date is the date when the dispute arose rather than the date when the events or actions that may have given rise to the dispute took place
Objections relating to requirements contained in the document on which consent is based concern the tribunal’s jurisdiction. Such requirements must be met, otherwise the tribunal may not examine the case. Contrary to this, objections relating to admissibility are capable of being removed.
A tribunal has a duty to determine its jurisdiction sua sponte
While the jurisdictional stage is not the appropriate time to enter the merits of the case, certain factual determinations may be required, such as those regarding a tribunal’s jurisdiction ratione personae
The IIT may provide that the critical date is the date when the dispute arose rather than the date when the events or actions that may have given rise to the dispute took place
In interpreting IITs, any relevant rules of international law may be taken into account according to Articles 31 (3)(c) of the VCLT
Prerequisites of ICSID competence have to be addressed by a tribunal
To meet the requirement of a dispute within the meaning of Article 25 ICSID Convention, it is not necessary to address the existence of actual harm at the jurisdictional stage
The burden of proving that nationality was acquired in a manner inconsistent with international law lies with the party challenging the nationality
The State conferring nationality enjoys a margin of discretion in determining the criteria of nationality
In case of a single nationality, considerations of effectiveness regarding the opposability of that nationality do not arise under Article 25 ICSID Convention
While it is a general principle that is for each state to decide in accordance with its law who is its national it is also well established that the acquisition of nationality must not be inconsistent with international law, i.e. based on fraud or material error
Article 15 of the Universal Declaration of Human Rights is relevant for the determination of nationality
The required consent can be provided for within an ITT
Nationality is an objective jurisdiction requirement which a tribunal must make sure that it is satisfied

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