On 20 May 2026, an arbitral tribunal (the “Tribunal”) constituted under the 1976 UNCITRAL Arbitration Rules (the “UNCITRAL Rules”) issued its Final Award (the “Award”) in Abdallah Andraous v. Kingdom of the Netherlands, ICSID Case No. UNCT/23/3. The arbitration was brought by Mr Abdallah Andraous (the “Claimant”) against the Kingdom of the Netherlands (the “Respondent”) under the Agreement on the Encouragement and Reciprocal Protection of Investments between the Lebanese Republic and the Kingdom of the Netherlands (the “Dutch-Lebanese BIT” or “BIT”).
The Tribunal dismissed all of the Claimant’s claims for lack of jurisdiction ratione materiae.[1] It found that the Claimant no longer owned the shares on which his principal investment claim was based when the disputed State measures occurred,[2] that he had not established another proprietary interest in those shares,[3] and that his alleged salary and pension rights arising from his employment did not constitute protected investments under the BIT.[4] The Tribunal also rejected the Claimant’s attempt to rely on the European Convention on Human Rights (the “ECHR”) through the BIT’s most-favoured-nation (“MFN”) provision.[5]
The Award is significant because it illustrates that an investment treaty’s broad, asset-based definition of “investment” does not eliminate the need for a claimant to establish an actual, protected investment at the relevant time. It also demonstrates the limits of using employment-related monetary rights or protections found in other treaties to overcome that threshold jurisdictional requirement.
Facts
The dispute arose from the Claimant’s involvement with the Ennia Group, a major insurance group in Curaçao. Between 2001 and 2005, the Claimant advised businessman Hushang Ansary in connection with the acquisition of Banco di Caribe and Ennia.[6] The Claimant alleged that, instead of receiving payment for those services, he was promised an equity interest in Parman International BV (“Parman”), the holding company through which Mr. Ansary had acquired the financial institutions.[7] On 28 December 2011, the Claimant was allotted 25,000 Class A shares in Parman, valued at approximately USD 3.548 million at the time.[8] He also occupied several senior management positions within Parman and the Ennia companies, received a salary, participated in pension programmes, and received dividends on his Parman shares between 2012 and 2015.[9]
The ownership of those shares became central to the arbitration. On 1 December 2015, the Claimant transferred his Parman shares to a Curaçao foundation.[10] Although he initially argued in the arbitration that the transfer had not become effective because the purchase price was never paid, he abandoned that position at the jurisdictional hearing and accepted that the foundation had become the owner of the shares in 2015.[11]
Separately, the Central Bank of Curaçao and St. Maarten (the “Central Bank”) had raised concerns regarding the solvency of the Ennia insurers.[12] In 2016, the Central Bank granted the insurance companies a three-year period to restructure certain investments and reduce loans and receivables involving affiliated entities.[13] On 4 July 2018, however, the Curaçao Court of First Instance, at the Central Bank’s request, issued a declaration of emergency (the “Emergency Declaration”) under the National Insurance Supervision Ordinance.[14] The measure was based, among other things, on the Central Bank’s position that the Ennia Group had a serious solvency deficit and that assets were being removed from its supervision.[15] The resulting emergency scheme placed the Ennia Group under the Central Bank’s control.[16]
Following the intervention, the Claimant’s directorship and management positions within the Ennia Group were terminated. He consequently stopped receiving his salary and claimed that he also lost his pension rights.[17]
The Claimant alleged that the Central Bank’s intervention and subsequent conduct violated the BIT and sought, among other relief, restoration of his proprietary rights and compensation for the losses allegedly caused by the Respondent’s conduct.[18] The parties agreed to bifurcate the proceedings, and the Award therefore addressed jurisdiction before any determination of treaty liability or compensation.[19]
Issues
The principal jurisdictional question was whether the Claimant possessed a qualifying investment for purposes of the BIT when the measures complained of occurred in July 2018. Article 1(a) of the BIT defined investments broadly as “every kind of asset”, including rights derived from shares and “claims to money” or other economically valuable performance.[20] Article 1(b), however, required an investor to have “made an investment” in the territory of the other Contracting Party.[21]
Three issues became decisive:
- First, whether the Claimant retained ownership, beneficial ownership, or another proprietary interest in the Parman shares after their transfer in 2015.
- Second, whether the salary and pension rights allegedly lost following the 2018 intervention constituted investments as “claims to money”.
- Third, whether the Claimant could use the BIT’s MFN clause to invoke property protections under the ECHR.
The Respondent had also challenged jurisdiction ratione personae because the Claimant was a Dutch-Lebanese dual national during the relevant period. The Tribunal did not decide that objection. Once it concluded that the Claimant had no qualifying investment, the personal-jurisdiction question could not alter the outcome.[22]
Key Findings
The Tribunal found that the Claimant had transferred his Parman shares in December 2015 and did not own them when the alleged treaty breaches arose in 2018.[23] The fact that the purchase price might not have been fully paid did not undo the transfer under Curaçao law; at most, non-payment could generate a monetary claim for the outstanding purchase price.[24]
Nor did the Claimant establish a beneficial or contingent interest in the shares held by the foundation. A contingent right could not be inferred merely from the Claimant’s status as a possible beneficiary of a foundation whose board retained discretion over distributions.[25] The Tribunal found that the documentary record did not establish an enforceable entitlement to the foundation’s assets.[26]
The Tribunal also rejected the Claimant’s reliance on a purported 2024 assignment of the founder’s powers. Even assuming that the assignment were legally effective, it did not itself transfer ownership of the Parman shares to the Claimant.[27] Furthermore, any interest created in January 2024 would have arisen years after the dispute and after commencement of the arbitration.[28]
The Claimant’s alleged salary and pension rights likewise failed. The Tribunal found the evidentiary record insufficient to establish the underlying salary and pension entitlements.[29] More importantly, it held that even established claims arising from an ordinary employment relationship would not constitute an “investment” within the ordinary meaning and purpose of the BIT.[30]
Finally, the Tribunal rejected the Claimant’s attempt to invoke Protocol No. 1 to the ECHR through Article 3(5) of the BIT. The Tribunal considered that the MFN-type provision could not be used indiscriminately to incorporate other international rules in a manner that would fundamentally enlarge the BIT’s definition of an investment.[31]
Reasoning
1. Ownership of the Investment Had to Exist at the Relevant Time
A central feature of the Award is the Tribunal’s focus on ownership at the time of the alleged State measures.
The Claimant had originally contended that his Parman shares constituted the core of his investment in the Ennia Group.[32] He also argued that the shares had been acquired in exchange for years of work, know-how and entrepreneurship, rather than through a conventional cash contribution.[33] The Respondent disputed whether such circumstances amounted to the “making” of an investment and separately argued that the Claimant’s indirect interest in the Ennia insurers was too remote.[34]
The Tribunal ultimately did not need to resolve either issue.
Instead, it began with the more fundamental question: did the Claimant own the alleged investment at all when the measures complained of occurred?
The evidence showed that a share sale and purchase agreement had been concluded in December 2015 and acknowledged by Parman.[35] An expert on Curaçao law testified, without contradiction, that the effectiveness of the transfer did not depend upon full payment of the purchase price.[36] The stock register was consistent with that transfer.[37] The Tribunal therefore concluded that the Claimant ceased to own the shares on 1 December 2015.[38]
2. A Potential Beneficiary Was Not the Equivalent of an Owner
The Claimant sought to overcome the transfer of legal title by relying on his relationship with the foundation that owned the shares.
The entity was a Stichting Particulier Fonds (“SPF”), a form of Curaçao foundation possessing separate legal personality and no shareholders.[39] According to the Curaçao-law evidence before the Tribunal, a person who had not been expressly granted rights over an SPF’s assets could not compel distributions merely because that person might benefit from the foundation.[40]
A 2019 document identified the Claimant as a beneficiary, but it did not specify the nature of that status.[41] Because the foundation’s governing documents left distributions to the board’s discretion, the Tribunal concluded that the Claimant was, at most, a potential beneficiary.[42] That gave him a possibility of receiving a distribution, rather than an enforceable claim against particular assets such as the Parman shares.[43] The Tribunal also noted the absence of the type of resolution or documentation it would have expected had the Claimant been designated as the future recipient of those specific assets.[44]
The Claimant’s reliance on the 2024 assignment of the founder’s powers did not change that analysis. The Curaçao-law expert considered the purported assignment inconsistent with the foundation’s governing documents, and the Claimant provided no contrary expert evidence.[45] Even if the assignment had been valid, however, the Tribunal found that powers concerning beneficiaries or distributions would not automatically confer proprietary rights in assets legally owned by the foundation.[46]
Timing independently presented another obstacle. Even if the 2024 assignment had somehow created a proprietary interest, that interest would have arisen approximately six years after the measures complained of and roughly one year after the arbitration commenced.[47] The Tribunal emphasised that the qualifying investment must exist during the period necessary to invoke treaty protection.[48]
That finding was sufficient to dispose of significant parts of the Respondent’s jurisdictional objection. Once the Tribunal determined that the Claimant did not hold title or another relevant interest in the shares, it expressly considered it unnecessary to determine whether the original acquisition constituted the “making” of an investment or whether the indirect shareholding was too remote to receive treaty protection.[49]
The Award therefore should not be read as deciding that services or so-called “sweat equity” can never constitute a contribution to an investment. That question was left open because the Claimant failed at the prior requirement of establishing ownership of the asset at the relevant time.
3. “Claims to Money” Did Not Transform Employment Rights into Investments
The Claimant separately relied on his salary and pension rights, arguing that they fell within Article 1(a)(iii) of the BIT, which includes “claims to money” among the treaty’s illustrative categories of assets.[50]
The Tribunal rejected the argument at two levels.
First, the Claimant had not adequately proved that the relevant rights existed. Regarding salary, the Tribunal found no evidence establishing an entitlement to salary following the Claimant’s dismissal.[51] Regarding pension rights, the evidence included proof of an insurance policy but did not establish the specific pension entitlement claimed or demonstrate the asserted payments into the pension arrangement.[52]
Second, the Tribunal held that the mere presence of an asset within one of the categories listed in Article 1(a) did not necessarily make it an investment.
Applying Article 31 of the Vienna Convention on the Law of Treaties (“VCLT”), the Tribunal interpreted the asset categories in light of the ordinary meaning, context, object and purpose of the BIT.[53] It relied in particular on investment-arbitration decisions, such as OI European v. Venezuela and Romak v. Uzbekistan, cautioning against a mechanical reading under which every monetary asset falling literally within an illustrative category would become a protected investment.[54]
The Tribunal consequently held that salary and pension claims arising from an employment arrangement were not investments within the ordinary meaning of the BIT.[55] The Claimant’s attempt to connect those rights to the broader Parman shareholding did not alter that conclusion, particularly because the Tribunal had already determined that the Claimant did not own the shares when the dispute arose.[56] The salary and pension arrangements had also arisen independently of the shares and represented compensation for the Claimant’s employment services.[57]
The reasoning draws an important distinction between a monetary asset and an investment. A treaty may expressly refer to “claims to money”, but that wording does not necessarily internationalise every contractual, employment or payment entitlement held by a foreign national.
4. The ECHR Could Not Be Used to Expand the BIT’s Definition of Investment
The Claimant introduced an additional argument at the hearing based on Article 3(5) of the BIT.[58] He argued that the provision allowed him to invoke Protocol No. 1 to the ECHR, under which certain proprietary rights, potentially including salary and pension entitlements, may receive protection.[59]
The Tribunal rejected that approach.[60]
As a preliminary matter, incorporation of the ECHR would not cure the Claimant’s failure to establish the proprietary rights on which his claims depended. The Tribunal had already found insufficient evidence of ownership of the Parman shares or of the relevant post-dismissal salary and pension rights.[61]
More fundamentally, the Tribunal interpreted Article 3(5) under the VCLT and held that it could not be used to incorporate indiscriminately any rule binding upon the Netherlands. Although Article 3(5) contemplated more favourable rules concerning the treatment and protection of investments, the ECHR was principally a human-rights instrument. Using its property protections to bring salary and pension rights within the investment treaty would significantly modify the object, purpose and jurisdictional structure of the BIT, including its definition of an investment.[62]
The Tribunal also observed that Article 32 of the ECHR assigns questions concerning the interpretation and application of the ECHR to the European Court of Human Rights. The investment arbitration did not prevent the Claimant from pursuing a distinct ECHR claim in the appropriate forum, but it did not give the Tribunal jurisdiction to determine such a claim.[63]
The finding therefore places an important limit on the use of MFN-type treaty language: such clauses cannot necessarily be used to manufacture a qualifying investment where the basic jurisdictional requirements of the underlying investment treaty are absent.
5. Costs Followed the Jurisdictional Result, but Only Partially
Under Article 40 of the UNCITRAL Rules, the costs of arbitration are in principle borne by the unsuccessful party, subject to the Tribunal’s power to make a different allocation where reasonable.[64]
The Respondent prevailed on jurisdiction, making it the successful party.[65] The Tribunal also noted that the Claimant’s case had changed during the arbitration, including through new arguments advanced at the hearing, and that the Claimant had failed to comply with certain document-production orders.[66] At the same time, the Respondent had unsuccessfully sought security for costs and had employed a substantial legal team (for more about this, see Aceris Law’s prior note on Security for Costs).[67]
Balancing those considerations, the Tribunal awarded the Respondent 60% of its attorneys’ fees and expenses, amounting to EUR 1,756,204.26, together with 60% of its share of the Tribunal and administrative costs, amounting to USD 183,633.60.[68]
The Tribunal ultimately dismissed all claims for lack of subject-matter jurisdiction, ordered the Claimant to pay those two amounts to the Netherlands, and rejected all other claims.[69]
Conclusion
The Award in Andraous v. Netherlands emphasises that the existence of a qualifying investment remains a threshold question even under a treaty containing a broad, non-exhaustive definition of investments. A claimant invoking treaty protection must establish more than a historic connection with an asset or business: the claimant must possess the legally relevant investment interest at the time required for jurisdiction.
The decision is particularly instructive regarding ownership through private foundations. A discretionary possibility of receiving assets did not amount to a proprietary or contingent interest in the underlying shares. Nor could an assignment made years after the alleged treaty breach retroactively create the qualifying investment necessary for jurisdiction.[70]
The Award similarly confirms that broad treaty language covering monetary claims cannot be read mechanically. Salary and pension rights arising from ordinary employment remained employment rights rather than foreign investments, even though they possessed economic value. Finally, the MFN provision could not be used to import ECHR protections in a manner that would substantially rewrite the BIT’s jurisdictional boundaries.[71]
The central lesson is therefore one of jurisdictional sequencing: before an investment tribunal considers whether State conduct was unlawful, it must first be satisfied that the claimant actually possessed an investment protected by the treaty. In Andraous, the failure to establish that threshold issue meant that the Tribunal never reached the merits of the challenged intervention in the Ennia Group.
[1] Award, ¶ 244.
[2] Id., ¶ 173.
[3] Id., ¶ 188.
[4] Id., ¶ 200.
[5] Id., ¶ 216.
[6] Id., ¶ 61.
[7] Id., ¶ 62.
[8] Id.
[9] Id., ¶¶ 63-64.
[10] Id., ¶ 65.
[11] Id., ¶¶ 65, 149-150, 165-173.
[12] Id., ¶ 72.
[13] Id., ¶ 73.
[14] Id., ¶ 77.
[15] Id.
[16] Id., ¶¶ 78-80.
[17] Id., ¶ 90.
[18] Id., ¶ 97.
[19] Id., ¶ 5.
[20] Id., ¶ 100.
[21] Id., ¶ 101.
[22] Id., ¶¶ 9-10.
[23] Id., ¶ 173.
[24] Id., ¶ 170.
[25] Id., ¶ 179.
[26] Id., ¶¶ 175-181.
[27] Id., ¶ 186.
[28] Id., ¶ 187.
[29] Id., ¶¶ 191-192.
[30] Id., ¶¶ 194-204.
[31] Id., ¶¶ 205-216.
[32] Id., ¶ 143.
[33] Id., ¶¶ 144-147.
[34] Id., ¶¶ 105-110, 126-129.
[35] Id., ¶¶ 165-169.
[36] Id., ¶ 170.
[37] Id., ¶ 168.
[38] Id., ¶ 173.
[39] Id., ¶ 175.
[40] Id., ¶ 177.
[41] Id., ¶ 179.
[42] Id.
[43] Id.
[44] Id., ¶ 181.
[45] Id., ¶¶ 183-185.
[46] Id., ¶ 186.
[47] Id., ¶ 187.
[48] Id., ¶ 187.
[49] Id., ¶ 188.
[50] Id., ¶ 189.
[51] Id., ¶ 191.
[52] Id., ¶¶ 192-193.
[53] Id., ¶ 195.
[54] Id., ¶¶ 195-200.
[55] Id., ¶ 200.
[56] Id., ¶ 202.
[57] Id., ¶ 203.
[58] Id., ¶ 205.
[59] Id., ¶ 206.
[60] Id., ¶ 207.
[61] Id., ¶ 208.
[62] Id., ¶¶ 209-213.
[63] Id., ¶¶ 214-216.
[64] Id., ¶ 240.
[65] Id., ¶ 241.
[66] Id.
[67] Id., ¶ 242.
[68] Id., ¶ 243.
[69] Id., ¶ 244.
[70] Id., ¶¶ 175-188.
[71] Id., ¶¶ 190-216.
