In the words of the tribunal: [i]n international law parlance, there must be continuous national identity from the date of the events giving rise to the claim, which date is known as the dies a quo through the date of the resolution of the claim, which date is known as the dies ad quem Nafcanco was not a claimant and the tribunal did not explain whether its findings would have been any different had Nafcanco been joined in the proceedings as a claimant or had filed a separate claim.Other tribunals have held that an assignment of the investment or the investment treaty claim The cases discussed above indicate that the issues regarding the assignment of investment treaty claims are complex and not entirely settled.At least such questions might affect the quantum of recovery, but they might have further and even more basic legal consequences, the Canadian claimant (Loewen Group, Inc.) declared bankruptcy during the pendency of the arbitration proceedings.
[a] claim under the ICSID Convention with its carefully structured system is not a readily assignable chose in action as shares in the stock-exchange market or other types of negotiable instruments, such as promissory notes or letters of credit, where the tribunals held that it is impermissible to engage in investment treaty structuring in order to benefit from investment treaty protection in respect of a dispute that was foreseeable or otherwise anticipated at the time the restructuring took place.a claimant must have the nationality of the relevant Contracting Party at the time of the breach ...
Once that offer is accepted, the arbitration agreement is perfected.
When the assignor is a national of a non-ICSID Contracting State or a person or entity that is not otherwise covered under an investment treaty, yet the assignee is a national of an ICSID Contracting State or a national who would satisfy an investment treaty’s nationality requirements, several tribunals have considered that this is not sufficient to establish jurisdiction.
The ICLG to: Investor-State Arbitration Laws and Regulations covers common issues in investor-state arbitration laws and regulations - including treaties, legal frameworks, case trends, funding, international tribunals, domestic courts, recognition and enforcement - in 21 jurisdictions.
However, arbitral practice reveals that when assigned rights are to be enforced by arbitration, a host of complex issues may arise, including whether assignees may compel arbitration against the assignor’s counterparty and whether an assignment after the commencement of the arbitration is possible and if so, whether it has the effect of a joinder, and whether and how assignment affects the rights and obligations of the assignor or the assignor’s counterparty.