The Nationality of Corporate Investors under International Investment Law

by Anil Yilmaz Vastardis, Gabrielle Marceau (Editor), Krista Nadakavukaren Schefer (Editor), Federico Ortino (Editor), Gregory Shaffer (Editor)

Overview

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 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.

Product Details

ISBN-13:	9781509944651
Publisher:	Bloomsbury Academic
Publication date:	06/30/2022
Series:	Studies in International Trade and Investment Law
Pages:	272
Product dimensions:	6.14(w) x 9.21(h) x 0.65(d)

About the Author

Anil Yilmaz Vastardis is Lecturer at the University of Essex School of Law.

Gabrielle Marceau, Ph.D., is Senior Counsellor in the Legal Affairs Division of the WTO Secretariat. She joined the GATT Secretariat in September 1994. Her main function is to advise panellists in WTO disputes, the Director-General's Office, the Secretariat and WTO Members on WTO-related matters.

From September 2005 to January 2010, Mrs Marceau was legal advisor in the Cabinet of former WTO Director-General Pascal Lamy and from September 2016 to January 2017, she was acting director Officer in charge for LAD. Ms Marceau has advised panelists in more than 20 WTO panels proceedings involving several disputes.

Gabrielle Marceau is also Associate Professor at the Law Faculty of the University of Geneva; she has been Visiting Professor at the Graduate Institute in Geneva, the Sorbonne in Paris, Monash University in Melbourne, the World Trade Institute in Bern, and others. Professor Marceau is also involved with associations and groups promoting international law. Professor Marceau has published extensively in WTO law and international economic law. A selection of her publications can be found at http://www.unige.ch/droit/collaborateur/marceau-gabrielle/publications.html

Before joining the GATT Secretariat, Gabrielle Marceau, member of the Quebec/Canada Bar worked in private practice in Quebec, mainly in labour, insurance law and civil law.

Krista Nadakavukaren Schefer is Vice Director at the Swiss Institute of Comparative Law, Switzerland.

Federico Ortino is a Reader in International Economic Law at King's College London, UK.

Gregory Shaffer is the Scott K Ginsburg Professor of International Law at Georgetown University Law Center, USA.

Table of Contents

Introduction
I. A Case against the Expansionist Approach to Personal Scope of IIL Protections
II. Structure of the Analysis

PART I
FUNDAMENTAL ELEMENTS OF CORPORATE NATIONALITY IN IIL: CONDITIONS OF ACCESS TO PROTECTION,
NATIONALITY AND CORPORATE PERSONALITY
1. Access to International Investment Protection: ICSID, Investment Treaties and Institutional Arbitration Rules
I. Access to International Investment Arbitration
II. Conditions for Access to Investment Treaty Protection
III. Conclusion
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
II. Nationality of Objects
III. Conclusion
3. Distinguishing Features of Corporations for Purposes of Nationality
I. The Corporation as a Fictional Creature of the Law
II. Connecting a Corporation to a State Through Lex Societatis
III. The Corporation in a Global Economy: Multinationals Enterprises, Shell Corporations, and Regulatory Havens
IV. Conclusion

PART II
UNDERSTANDING CORPORATE NATIONALITY
4. Corporate Nationality in the Context of Diplomatic Protection and War-Time Sanctions
I. Determining Corporate Nationality under the Principles of Diplomatic Protection
II. Control Criterion for Domestic Wartime Sanctions
III. Conclusion
5. Corporate Investors' Nationality under the ICSID Convention and Investment Treaties
I. The ICSID Convention Article 25(2)(b) Requirement: Objective but Rarely Addressed
II. How do Investment Treaties Link Corporate Investors to States?
III. Conclusion

PART III
PROBLEMS AND SOLUTIONS
6. Exposing the Fault Lines
I. Methodological Flaws
II. Erosion of the Concept of 'Nationality'
III. Ramifications of the Methodological and Interpretative Flaws
IV. Conclusion
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
III. Way Forward: Restoring Conceptual and Methodological Rigour to Analysing Corporate Investors' Nationality
IV. Conclusion

Editorial Reviews

Who is protected under international investment agreements? Issues relating to nationality of corporate investors have been at the forefront of the recent debates about the present and future of international investment law. Among other things, the ability of firms to deploy their corporate form to cherry pick protections have caused much concern not only among scholars but also policymakers in both developed and developing states. Yet although such debates have generated a considerable body of literature, this book is the first of its kind to explore corporate nationality under international investment law in a critical and comprehensive manner. The book makes a novel contribution to international legal scholarship by tackling the subject with analytical rigour and eloquence in equal measure. In unveiling the systemic issues behind the backlash against international investment law, Yilmaz-Vastardis combines a meticulous analysis of the complex legal issues with a refreshing critical exposition of the context in which the law operates. The book will become a classic and a main point of reference for both scholars of international investment law and experts involved in drafting and interpreting investment treaty instruments.” —Dr Mavluda Sattorova, Reader, University of Liverpool Law School

“The legitimacy crisis that attends treaty-based investment arbitration arises from expansive interpretation of treaty provisions and manipulation of concepts used in the treaties. Nothing illustrates these trends better than the use made by arbitrators of the concept of corporate nationality that identifies the link between the investor and the home state as the basis of the claim for protection. The necessary link has been manipulated in investment arbitration to such an extent as to bring about results unintended by states. The resulting tension hangs over investment arbitration, threatening to undermine its foundations. Anil Yilmaz has made a sophisticated study of the unfolding of the trends, the justifications and criticisms of the developments in this book. Based on a comprehensive analysis of corporate nationality in other areas of the law, this study will influence the reform of a difficult area in investment treaties, as well as arbitration, and remain the standard work on the subject for many years to come.” —M Sornarajah, Emeritus Professor of Law, National University of Singapore

From the Publisher