Centre for Socio Legal Research (CSLR) deposited A Re-consideration of Nationality Planning in Investment Treaty Arbitration: Challenging Fundamental Assumptions and Beyond on Humanities Commons 1 year, 6 months ago
Pre-empting an examination of nationality to meet any challenges of jurisdiction ratione personae, multi-national corporations structure their operations in a manner that secures them access to a bi-lateral treaty. The possibilities afforded by the use of a corporate vehicle are distinct from those available to an individual investor and this is reflected in the divergent awards and jurisprudence that follow these claiming entities. The emphasis on the distinction between individuals and corporate bodies has precluded a broader recognition of the accepted principles and assumptions that are common to and should inform any examination of nationality. This observation forms the starting point of this paper.
In relation to corporate structures specifically, through multiple awards, dissenting notes and scores of scholarly opinions, much ink has been spilled over nationality planning and yet no settled outcome emerges. The concerns of nationality planning are sometimes reflected in the very BIT under question, arguably ineffectively so, or often arise later before a tribunal that is faced with a specific factual oddity. Tribunals have then navigated through complex structures, and to uphold the purpose and objectives of international treaty arbitration as they define them, have creatively employed the use of doctrines such as the principle of abuse of rights and piercing the corporate veil. On that note, this paper takes a sharp deviation from the mainstream international practice to look at the outliers for a solution, drawing lessons from individual investor decisions and the ramifications of a corporate personality to offer a new approach to address the issue of nationality planning.