Treaty Shopping in International Investment Law

by Jorun Baumgartner

Overview

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.

Product Details

ISBN-13:	9780198787112
Publisher:	Oxford University Press
Publication date:	02/01/2017
Series:	International Economic Law Series
Pages:	400
Product dimensions:	6.10(w) x 9.30(h) x 1.30(d)

About the Author

Jorun Baumgartner, Research Fellow, University of Lausanne

Jorun Baumgartner is currently a research fellow at the University of Lausanne in Switzerland. Admitted to the bar in Germany, she previously worked as a corporate lawyer in Germany, as a legal advisor at the International Committee of the Red Cross in Geneva and as an economic policy officer at the International Investment Agreements section of the UN Conference on Trade and Development (UNCTAD). She holds a law degree from the University of Munich, as well as a LL.M. in international and European economic law and a PhD in international law (both from University of Lausanne). She has published in the fields of international investment law, international economic law, public international law and international criminal law.

Table of Contents

IntroductionPart I Placing treaty shopping in context1. Understanding the practice of treaty shopping2. Is anything wrong with treaty shopping?Part II: Systematic approaches to the validity of a claim based on treaty shoppingIntroduction3. The customary international law relative to changes of nationality4. Jurisdiction ratione personae5. Jurisdiction ratione materiae6. Jurisdiction ratione temporis7. Objections on grounds of an abuse of rights or abuse of processConclusionsPart III: Possible solutions to the inconsistent approaches towards treaty shoppingIntroduction8. What States can do to curb treaty shopping9. The role of the principle of good faith in treaty shoppingConclusions

Editorial Reviews

"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." — Jonathan Bonnitcha, The Modern Law Review

"Baumgartner provides for a useful analysis, especially for the practitioners. Her book presents a full and up-to-date review of the case law. The greatest strength in Baumgartners book is that the author reveals a straightforward test to apply in cases involving treaty shopping through corporate restructuring."— Berk Demirkol, Netherlands International Law Review

From the Publisher