In its bilateral investment treaty (BIT) network, Portugal adopts a predominantly formalistic approach to the definition of “investor,” balancing inclusivity with legal certainty.
Notable characteristics include:
- Inclusion of dual nationals – Absent any explicit exclusion, BITs generally encompass natural persons holding the nationality of either contracting party. The Portugal–Cape Verde BIT (1990) even recognises the possession of a national passport as prima facie proof of nationality, subject to rebuttal.
- Formal incorporation and seat criteria – Legal entities must typically be incorporated and have their registered seat in the territory of a contracting party, thereby establishing a clear jurisdictional link.
- Operational conformity – Certain treaties, such as the Portugal–Qatar BIT (2009), further require that legal persons operate in accordance with the host state’s laws.
- Absence of substantive control tests – Portuguese BITs rarely employ a “control” criterion, focusing instead on nationality or place of incorporation.
This definitional framework reflects Portugal’s commitment to transparency, predictability, and adherence to established treaty drafting conventions, while maintaining sufficient flexibility to accommodate diverse investor profiles.
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