Análisis de vulnerabilidades a los sistemas operativos

Private or public entity? The ICSID definition is not explicit as to whether eligibility is limited to investors who are private entities or whether they could be state-controlled.112 ICSID was confronted with this question of the access to the Centre of an investor with legal personality but controlled by a state in the case CSOB v.Slovak Republic113 (the state retained 65% of the capital). The tribunal noted that the term “investor” in the Convention, did not exclusively concern the companies with private capital but also companies partially or entirely controlled by a state.114 It therefore decided that a legal person could have access as an investor to proceedings under ICSID unless it acts as a state agent or undertakes a governmental function.115

109. See discussion on the case by E. Gaillard (n. 102); E. Teynier “Notion d’investisseur : sentences commentées” in (2003) 2 Gazette du Palais, Les Cahiers de l’Arbitrage, 2epartie.

110.Broches (n. 94) at 361. 111.Aucoven, paras. 120-1.

112. On this issue see the discussion by S. Manciaux: Investissements étrangers et arbitrage entre États et ressortissants d’autres États : trente années d’activité du CIRDI

(Travaux du Centre de recherche sur le droit des marchés et des investissements internationaux, Paris, Litec, 2004).

113.Ceskoslovenska Ochodni Banka (CSOB) v.Slovak Republic, ICSID case ARB/97/4, Decision on Jurisdiction, 24 May 1999.

114.CSOB v.Slovak Republic, para. 16. 115.Idem, paras. 17, 20-25.

Some investment agreements make it clear that state entities are included. For instance, the 2004 US Model BIT and Canada Model FIPA cover governmentally owned or controlled entities. According to Article 1, Definitions, enterprise means any entity constituted or organised under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled […] [emphasis added].

Similarly, Article 13(a)(iii) of the Convention establishing the Multilateral Investment Agency, defines eligible investors to include a juridical person “whether or not is privately owned […]” [emphasis added].

Some investment agreements include in addition to state entities, the government itself. For instance, in the 1996Czech Republic-Kuwait BIT and in the 2001Belgium-Saudi Arabia BIT, the Government qualifies as an investor.116

Different legal forms. Some BITs include language indicating that all legal entities, regardless of form may be considered investors. TheUS and Canada Model BITs for instance, provide that investors may consist of legal entities including a corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organisation; and a branch of any such enterprise.

The Swiss Model BIT also provides that the term investor refers to “legal entities including companies, corporations, business associations and other organisations”.

The German Model BIT, in addition to the above forms of companies, includes also non-profit entities in the definition of “investor”. In its Article 1.2a), it defines “companies” to include “any juridical person as well as any commercial or other company or association with or without legal personality […] irrespective of whether or not its activities are directed at profit” [emphasis added].

In the case Impregilo v.Pakistan,117 based on the Italy-Pakistan BIT, the tribunal found that it did not have jurisdiction rationae personae because Impregilo was only one of the companies of a joint venture and could not bring a claim on behalf of the others.118 Pakistan argued inter alia that Impregilo, which claimed to be “entitled to claim the entirety of the

116. A number of governments expressed some concern about the insistence of their counterparts in BIT negotiations to include the Government itself as an investor, in particular with respect to national security issues.

117.Impregilo S.p.A. v.Pakistan, ICSID case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005.

118. GBC (Ghazi-Barotha Contractors), a joint venture (“JV”) established under the laws of Switzerland, concluded two contracts (“the Contracts”) in 1995 with the Pakistan Water and Power Development Authority (“WAPDA”). The Contracts called for the construction of a barrage downstream and the construction of a channel respectively. Impregilo, an Italian company, was one of the five joint venture participants. The JV was established between an Italian, German, French, and two Pakistani companies, and Impregilo was selected to act as “leader” of the JV.

damages suffered by GBC because of its role in the JV with the partners”, lacked locus standi due to the fact that GBC itself had no legal personality. Moreover, the respondent continued, the claimant could not have the right to bring claims on behalf of the other parties of the JV, as the BIT was only concluded to confer privileges to Italian investors. The tribunal, citing a treatise on the drafting history of the ICSID Convention, indicated that “legal personality is a requirement for the application of Art. 25(2)(b) and that a mere association of individuals or of juridical persons would not qualify”. As a result, the tribunal found that Impregilo was not able to bring claims on behalf of the JV. The tribunal then examined whether Impregilo could make claims on behalf of the other participants in the JV. The tribunal reiterated that “consent of the parties is the cornerstone of the jurisdiction of the Centre”. Due to the fact that the other investors did not fall within the ambit of the BIT, Impregilo could not make claims on their behalf.