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The Nationality of Corporate Investors under International Investment Law

The Nationality of Corporate Investors under International Investment Law

Author: Anil Yilmaz Vastardis
Publisher: Hart Publishing
ISBN: 9781509933594

Published In: October 2020
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509944651

List Price: HKD 1,300.00

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Description
Contents

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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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