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.

Table Of Contents

Introduction

I. A Case against the Expansionist Approach to Personal Scope of IIL Protections

II. Structure of the Analysis



PART I

FUNDAMENTAL ELEMENTS OF CORPORATE NATIONALITY IN IIL: CONDITIONS OF ACCESS TO PROTECTION,

NATIONALITY AND CORPORATE PERSONALITY

1. Access to International Investment Protection: ICSID, Investment Treaties and Institutional Arbitration Rules

I. Access to International Investment Arbitration

II. Conditions for Access to Investment Treaty Protection

III. Conclusion

2. Nationality as a Legal Bond in International Law: A Story of Disagreement Over the Relevance and Meaning

of 'Genuine Link'

I. Nationality of Individuals

II. Nationality of Objects

III. Conclusion

3. Distinguishing Features of Corporations for Purposes of Nationality

I. The Corporation as a Fictional Creature of the Law

II. Connecting a Corporation to a State Through Lex Societatis

III. The Corporation in a Global Economy: Multinationals Enterprises, Shell Corporations, and Regulatory Havens

IV. Conclusion



PART II

UNDERSTANDING CORPORATE NATIONALITY

4. Corporate Nationality in the Context of Diplomatic Protection and War-Time Sanctions

I. Determining Corporate Nationality under the Principles of Diplomatic Protection

II. Control Criterion for Domestic Wartime Sanctions

III. Conclusion

5. Corporate Investors' Nationality under the ICSID Convention and Investment Treaties

I. The ICSID Convention Article 25(2)(b) Requirement: Objective but Rarely Addressed

II. How do Investment Treaties Link Corporate Investors to States?

III. Conclusion



PART III

PROBLEMS AND SOLUTIONS

6. Exposing the Fault Lines

I. Methodological Flaws

II. Erosion of the Concept of 'Nationality'

III. Ramifications of the Methodological and Interpretative Flaws

IV. Conclusion

7. Evaluation of Responses to Nationality Shopping and the Way Forward

I. Abuse of Rights – A Solution as Difficult as the Problem Itself

II. Denial of Benefits Clauses

III. Way Forward: Restoring Conceptual and Methodological Rigour to Analysing Corporate Investors' Nationality

IV. Conclusion