Diploma Thesis from the year 2017 in the subject Law - Miscellaneous, grade: 1.7, Humboldt-University of Berlin (International Dispute Resolution Master of Laws (LL.M.) Programme), course: International Investment Arbitration, language: English, abstract: The piercing the corporate veil in ISDS plays a twofold role. From the investors’ perspective, it is instrumental if a tribunal can ignore the difference between the legal personality of the company in which they invested in and the shares that they hold. Per contra, States also invoke this doctrine by trying to convince a tribunal to look at the true personalities involved and not to allow an investor to hide behind the veil of the different legal personalities. To address these competing interests, the author of this Master Thesis in Chapter II intends to analyse the characteristic pattern and standing of shareholders in bringing indirect claims aimed to persuade the tribunal to ignore the difference between the legal personality of a company and its shareholders and to look at the true interests at stake instead. In Chapter III, the applicability of the piercing the corporate veil doctrine will be approached from the States’ perspective and when they invoke the denial of benefits clauses. On the basis of the foregoing, this Master Thesis purports to address the intersection between the jurisdiction of the arbitral tribunal in ISDS and the concepts of investor and investment underlying the application of the piercing the corporate veil doctrine. By doing so, the author of this Master Thesis explores the provisions of IIAs commented on by authoritative treatises, contemporary views embodied in articles, and jurisprudence of international investment treaty tribunals. In order to arrive at its findings and conclusions, this Master Thesis utilizes the method of description, method of conceptual analysis, comparative method, and method of evaluation.

The abolition of Investor-State Dispute Settlement (ISDS) between Canada and the United States in the Canada-United States-Mexico Agreement (CUSMA) is likely to renew the interest for corporate strategies aiming to take advantage of the protection of investment agreements concluded with third states. Treaty shopping and the problem of free riding by third country investors is certainly not a new feature of foreign investment. This problem is specifically addressed by denial of benefits (DoB) clauses in many investment agreements. DoB clauses allow a host state to pierce the corporate veil in order to deny treaty protection to foreign investors that have no economic connection to the state of incorporation. This paper explores the problems of form and the problems of substance of the DoB clause raised in arbitral decisions, with some concluding remarks.

ICISD tribunals' jurisdiction is premised on the eligible foreign investors, nationals of other contracting state party, with which the host state has agreed to submit pertinent investment disputes to international investment arbitration. The theme of this article is whether or under what conditions can ICSID tribunals pierce veil of pertinent companies to delimit the genuine foreign investors protected by relevant BITs. The article first takes a critical review of the theoretical foundations of Piercing Corporate Veil in ICSID arbitration. In terms of logic premise of tribunal's decision, “piercing corporate veil” cases in ICSID can be classified into three categories: nationality-agreement jurisdiction mode, nationals of host state as controlling shareholders mode, corporations as a form of investment mode. Investment tribunals should reconcile divergent approaches by interpreting pertinent agreements in a delicate way within express or implied authorization to promote the coherence and consistency of International Investment law as a system. This article emphasizes the analysis of the practices of ICSID tribunals and tries to reconcile the divergent approaches. International Investment Law is a legal system and the investor-state arbitration tribunals are empowered two functions: disputes resolution and treaty interpretation. The sequence of application of pertinent agreements is ICSID Convention, pertinent BIT and involved investment contracts. On procedural treatments, BIT stipulation shall not conflict with that of ICSID Convention unless providing more favorable treatment to investors, whilst the pertinent investment contracts and concessions enjoy supremacy in both procedural and substantial treatments. The whole international investment law regime is designed to strike a balance between protection of investors and sovereign regulation of host state. While protecting foreign investors, international investment law shall preserve necessary space for host states to maneuver for public policy. Thus in these three kind agreements exists one implied or default clause which is that none of the three kind agreements shall be interpreted as a barrier to stop host state from offering more favorable treatment, except host state preserves otherwise expressly.

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.

This up-to-date and revised third edition offers a clear and comprehensive overview aimed at upper-level undergraduate and postgraduate courses on international investment law. Key features and benefits include: • concise descriptions of legal principles followed by classic and contemporary cases • extracts from and analysis of key recent decisions, revised investment treaty texts and new court system proposals • detailed discussion notes and all new ‘Questions to an Expert’ to enable classroom discussion and facilitate critical reflection.

This book provides an ideal introduction to the fundamentals of international investment law and dispute settlement for students, scholars, and practitioners. It combines a systematic analytical study of the texts and principles underlying investment law with a jurisprudential analysis of the case law arising in international tribunals.

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.