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The Nationality of Corporate Investors under International Investment Law


ISBN13: 9781509944651
To be Published: April 2022
Publisher: Hart Publishing
Country of Publication: UK
Format: Paerback (Hardback in 2020)
Price: £39.99
Hardback edition , ISBN13 9781509933594



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.

Subjects:
International Investment Law
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

Series: Studies in International Trade and Investment Law

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