Treaty Shopping in International Investment LawOxford University Press, 24.11.2016 - 352 Seiten Treaty shopping, also known under the terms of nationality planning, corporate (re-)structuring or corporate maneuvering, implies a strategic change of nationality or strategic invocation of another nationality with the aim of accessing another (usually more favourable) investment treaty for purposes of investment arbitration. When deciding on whether an investment claim based on treaty shopping should be upheld or dismissed, investment arbitral tribunals have been increasingly faced with significant questions, such as: What is treaty shopping and how may legitimate nationality planning be distinguished from treaty abuse in international investment law? Should a claimant that is controlled by a host-State national be considered a protected investor, or should tribunals pierce its corporate veil? Does an investor have to make the investment in good faith, and does it have to make a contribution of its own to the investment it is claiming protection for? When does a corporate restructuring constitute an abuse of process, and which is the role of the notion of dispute in this respect? How efficient are denial of benefits clauses to counter treaty shopping? Treaty Shopping in International Investment Law examines in a systematic manner the practice of treaty shopping in international investment law and arbitral decisions that have undertaken to draw this line. While some legal approaches taken by arbitral tribunals have started to consolidate, others remain unsettled, painting a picture of an overall inconsistent jurisprudence. This is hardly surprising, given the thousands of international investment agreements that provide for the investor ́s right to sue the host State on grounds of alleged breaches of investment obligations. This book analyses and discusses the different ways by which arbitral tribunals have dealt with the value judgment at the core of the distinction between objectionable and unobjectionable treaty shopping, and makes proposals de lege ferenda on how States could reform their international investment agreements (in particular with respect to treaty drafting) in order to make them less susceptible to the practice of treaty shopping. |
Inhalt
Introduction | 1 |
Part I Placing Treaty Shopping in Context | 5 |
Part II Systematic Approaches to the Validity of a Claim Involving Treaty Shopping | 67 |
Conclusions of Part II | 234 |
Part III Possible Solutions to the Inconsistent Approaches Towards Treaty Shopping | 237 |
Annex | 317 |
Bibliography | 331 |
351 | |
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Häufige Begriffe und Wortgruppen
15 September abuse of process abuse of rights abuse of rights/abuse accessed on 15 arbitral tribunals Argentina arguably Barcelona Traction BIT Agreement Bolivarian Republic breach change of nationality claimant ConocoPhillips Contracting Party corporate structuring customary international law Czech Republic Decision on Jurisdiction diplomatic protection dispute settlement DOB clause dual nationality entity existence fact faith foreign control foreseeable future dispute genuine link Ibid ICJ Rep ICSID Convention indirect investments international investment law International Law Commission interpretation Intl investment claim Investment Disputes investment protection Investment Treaty Arbitration Investor-State jurisdiction ratione temporis Kazakhstan last accessed legal persons legitimacy mailbox companies natural persons notion of dispute notion of investment Oxford University Press Pac Rim paras Philip Morris Phoenix Action practice of treaty principle Protection of Investments Public International Law qualifying question Reciprocal Protection relevant requirement respect Schreuer September 2016 shareholding similar Standard Chartered Bank strategic change treaty shopping tribunal’s UNCITRAL UNCTAD