brought under the dominican republic - central america - ita

But on the other side, an international investor cannot modify downstream the
protection granted to its investment by the host State, once the acts which the
investor considers are causing damages to its investment have already been
committed.‖ 30
2.47. The Tribunal does not dispute (nor did the Respondent) that if a corporate restructuring
affecting a claimant‟s nationality was made in good faith before the occurrence
of any event or measure giving rise to a later dispute, that restructuring should not be
considered as an abuse of process. 31 That is not, however, the issue in the present
case, as the Tribunal explains below by reference to other reported cases.
2.48. The Tribunal notes first the approach adopted by the tribunal in Autopista v. Venezuela,
32 where a Mexican company restructured its investment in a Venezuelan
company, Aucoven, by transferring 75 % of its shares to a US corporation. As in the
present case, the respondent alleged that this restructuring was an abuse in order to
gain access to ICSID jurisdiction. The tribunal noted that the US entity had been incorporated
eight years before the parties had entered into their concession agreement;
and that it was not a mere shell corporation. Thus, the tribunal concluded that
the restructuring did not constitute “an abuse of the Convention purposes.” 33
2.49. In Tokios Tokelés v. Ukraine, 34 the claimant was organised under Lithuanian law but
was owned and controlled as to 99 % by Ukrainian nationals. The tribunal noted that
this enterprise was formed many years before the BIT between Ukraine and Lithuania
entered into force; and it concluded:
―The Claimant manifestly did not create Tokios Tokelés for the purpose of gaining
access to ICSID arbitration under the BIT against Ukraine, as the enterprise was
founded six years before the BIT … entered into force. Indeed, there is no evidence
in the record that the Claimant used its formal legal nationality for any improper
purpose.” 35
30
31
32
33
34
35
Phoenix v. Czech Republic, supra, note 5, §§ 94-95. Emphasis in the original.
Certain decisions to this effect have been made subject to a dissenting opinion.
Autopista Concesionada de Venezuela, C.A. v. Bolivarian Republic of Venezuela, ICSID Case No.
ARB/00/5, Decision on Jurisdiction, 27 September 2001.
Ibid., § 126.
Tokios Tokelės v. Ukraine, ICSID Case No. ARB/02/18, Decision on Jurisdiction, 29 April 2004, §§ 53 to
56. This case did not involve a restructuration by a change of nationality to get access to ICSID
jurisdiction, but an initial structuration permitting such access.
Ibid., § 56.
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