How to identify insiders and intruders disguising as investors in the assignment of investments
Document Type
Article
Publication Date
4-1-2022
Abstract
The constant exchange of investment assets poses a risk of `commoditisation' of investment treaty claims. Nevertheless, both traditional and modern investment treaties contain sufficient safeguards against attempts by host State `insiders' and third State `intruders' to create artificial access to arbitration. First, the definition of `investment' can filter genuine investments from bare acquisition of assets (ratione materiae). Second, the textual linkage between `investor' and `investment' strongly implies that `active contribution' in the investment is required from assignees to qualify for protection (ratione personae). Third, the doctrine of abuse of rights prevents treaty shopping and internationalisation of domestic disputes (ratione temporis).
Keywords
private international law, foreign investment, abuse of process, treaty shopping, ratione materiae, ratione personae, ratione temporis, treaty interpretation, jurisdiction, commoditisation of claim
Divisions
fac_law
Publication Title
INTERNATIONAL & COMPARATIVE LAW QUARTERLY
Volume
71
Issue
2
Publisher
CAMBRIDGE UNIV PRESS
Publisher Location
EDINBURGH BLDG, SHAFTESBURY RD, CB2 8RU CAMBRIDGE, ENGLAND