Treaty Shopping in International Investment Law
Series: International Economic Law Series;
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Product details:
- Publisher OUP Oxford
- Date of Publication 1 December 2016
- ISBN 9780198787112
- Binding Hardback
- No. of pages394 pages
- Size 240x164x30 mm
- Weight 754 g
- Language English 0
Categories
Short description:
Analysing how arbitral tribunals have dealt with the value judgment at the core of the distinction between 'objectionable' and 'unobjectionable' treaty shopping, this book suggests how States could reform their international investment agreements in order to make them less susceptible to the practice of treaty shopping.
MoreLong description:
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.
To my knowledge, Dr Jorun Baumgartner's Treaty Shopping in International Investment Law is the first academic monograph published in English on the subject. Her book is a comprehensive and detailed account of every aspect of international investment law as it relates to treaty shopping. As a legal reference, it sets a new benchmark on this subject. It will be an indispensable resource for practitioners involved in investment arbitrations that raise questions of treaty shopping.
Table of Contents:
Introduction
Part I Placing treaty shopping in context
Understanding the practice of treaty shopping
Is anything wrong with treaty shopping?
Part II: Systematic approaches to the validity of a claim based on treaty shopping
Introduction
The customary international law relative to changes of nationality
Jurisdiction ratione personae
Jurisdiction ratione materiae
Jurisdiction ratione temporis
Objections on grounds of an abuse of rights or abuse of process
Conclusions
Part III: Possible solutions to the inconsistent approaches towards treaty shopping
Introduction
What States can do to curb treaty shopping
The role of the principle of good faith in treaty shopping
Conclusions
