Mihaljević v Croatia: Abuse of Rights and Nationality Planning by Natural Persons

This artilce examines the 19 May 2023 Award and Concurring Opinion in Mihaljević v Croatia, a dispute submitted to ICSID by Mr Marko Mihaljević (the Claimant) under the Croatia–Germany bilateral investment treaty (BIT).3 Croatia challenged the Tribunal’s jurisdiction, arguing that the Claimant did not comply with the requirements of Article 25 of the ICSID Convention. As part of this objection, Croatia averred that the Claimant had consented to ICSID arbitration when he gave his Notice of Dispute to Croatia. The State then argued that, on the date of consent and at the time of the registration of the request for arbitration, the Claimant was a citizen of Croatia. As such, Croatia concluded, the Claimant did not qualify as a ‘national’ of another Contracting State for the purposes of Article 25(2)(a) of the ICSID Convention. Croatia also objected to jurisdiction on the ground that the Claimant committed an abuse of process (or abuse of rights) by attempting to revoke his host State nationality after the dispute had arisen, with the sole purpose of circumventing ICSID’s host State nationality restriction.