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The Nationality of Corporate Investors under International Investment Law

The Nationality of Corporate Investors under International Investment Law

  • 作者:
  • 出版商: Hart Publishing
  • ISBN: 9781509933594
  • 出版时间 October 2020
  • 规格: Hardback
  • 适应领域: U.K. ? 免责申明:
    Countri(es) stated herein are used as reference only
  • Paperback Edition ISBN: 9781509944651
¥1,116.25
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  • 描述 
  • 大纲 
  • 详细

    This monograph offers a detailed and distinctive analysis of corporate nationality under international investment law, covering the ICSID Convention and the investment treaty framework. It takes the reader back to the basics threading through the concepts of jurisdiction, nationality, and corporate personality to give a clear context to the discussion of corporate nationality under international investment law, at a time when international investment is dominated by multinational business enterprises operating in a globalised economy.

    The book examines different understandings of corporate personality and nationality under a selection of major jurisdictions and public international law. It also offers an in-depth analysis of approaches found in ICSID arbitral awards and in investment treaty practice, distilling the problematic areas and discussing the impacts of the areas of concern. It evaluates the techniques developed to address problems and puts forward suggestions for effective and balanced solutions to the questions of corporate nationality and personal scope of investment protection.

  • Introduction
    I. A case against the expansionist approach to personal scope of IIL protections
    A. Reciprocity:
    B. Consent and bargain
    II. Structure of the analysis
    A. Fundamental elements of corporate nationality in IIL: Conditions of access to protection, nationality and corporate personality
    B. Understanding corporate nationality
    C. Exposing the fault lines and the way forward
    Part I – Fundamental elements of corporate nationality in IIL: Conditions of access to protection, nationality and corporate personality
    Chapter 1 - Access to international investment protection: ICSID, Investment Treaties and Institutional Arbitration Rules
    I. Access to International Investment Arbitration
    A. Jurisdiction under the ICSID Convention
    B. ICSID Convention Article 25 Requirements
    C. Investment Arbitration Outside the ICSID Convention ('Non-ICSID Investment Arbitration')
    II. Conditions for Access to Investment Treaty Protection
    III. Conclusion
    Chapter 2 - Nationality as a legal bond in International Law: a story of disagreement over the relevance and meaning of 'genuine link'
    I. Nationality of Individuals
    A. Acquisition of Nationality by Individuals and Its Legal Consequences
    B. Recognition and enforceability of nationality under international law on diplomatic protection
    C. Individual investors' nationality under International Investment Law
    D. Concluding observations
    II. Nationality of objects:
    A. Ships and aircrafts
    B. Corporations
    III. Conclusion
    Chapter 3- Distinguishing features of corporations for purposes of nationality
    I. The Corporation as a Fictional Creature of the Law
    A. Origin and Purpose of Corporations
    B. Separate Legal Personality and the Principle of Limited Liability
    C. Abandoning the Fiction and Piercing the Corporate Veil
    D. Veil Piercing in Domestic Laws
    i) Disregarding limited liability
    ii) Disregarding the separate legal personality
    II. Connecting a Corporation to a State through Lex Societatis
    A. Theory of Incorporation
    B. The Real Seat Theory
    III. The corporation in a global economy: Multinational enterprises, shell corporations, and regulatory havens
    IV. Conclusion
    Part II – Understanding Corporate Nationality
    Chapter 4 - Corporate Nationality in the context of diplomatic protection and war-time sanctions
    I. Determining corporate nationality under the principles of diplomatic protection
    A. Barcelona Traction Case
    B. ELSI Case
    C. Diallo Case
    D. State Practice and Post-Conflict Claims Commissions
    E. The ILC Draft Articles on Diplomatic Protection
    II. Control Criterion for Domestic Wartime Sanctions
    III. Conclusion
    Chapter 5 – Corporate Investors' Nationality under the ICSID Convention and Investment Treaties
    I. The ICSID Convention Article 25(2)(b) requirement: Objective but rarely addressed
    A. Investment without a locally incorporated entity: The first part of Article 25(2)(b)
    i) ICSID Arbitral Decisions
    B. The second part of Article 25(2)(b): Foreign-controlled host state entities
    i) Nationality of the host state entity
    ii) Indicators of control and the investment ownership structure
    iii) Parties' agreement on foreign control
    II. How do investment treaties link corporate investors to states?
    A. 'Nationals'
    B. 'Investors', 'Enterprises', and 'Companies'
    III. Conclusion
    Part III – Problems and solutions
    Chapter 6 - Exposing the Fault Lines
    I. Methodological Flaws
    A. Blurred Lines between the ICSID Convention's Jurisdictional Requirements and Investment Treaty Clauses on Personal Scope
    B. Impact of the Meaning of 'Investment' on the Assessment of Nationality
    C. The Impact of Temporal Scope on the Assessment of Nationality
    i) Timing of treaty or nationality shopping
    ii) Investments 'made' in the territory of the host state
    II. Erosion of the Concept of 'Nationality'
    A. Decreasing Importance of Nationality for Corporations – Is Nationality the Right Connecting Factor?
    B. Differential Treatment of Treaty-Shopping for Individual Investors' v Corporate Investors' Nationality
    III. Ramifications of the Methodological and Interpretative Flaws
    A. Parallel claims
    i) Diplomatic intervention
    ii) Multiple arbitration claims
    B. Damage to the Legitimacy of International Investment Arbitration
    IV. Conclusion
    Chapter 7- Evaluation of responses to nationality shopping and the way forward
    I. Abuse of rights – a solution as difficult as the problem itself
    II. Denial of Benefits Clauses
    A. The procedure for invoking DoB clauses
    B. Substantial business activity
    III. Way forward: Restoring conceptual and methodolgical rigour to analysing corporate investors' nationality
    A. Why the Real Seat standard?
    B. Real seat distinguised from statutory seat and registered address
    C. Application of the real seat standard in IIL
    D. Nationality determined with reference to 'control'
    i) Indirect Ownership by Natural Persons
    ii) State-Owned Enterprises as Investors
    iii) Investments involving multiple layers of corporate ownership
    IV. Conclusion

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