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International investment disputes, nationality and corporate veil: some insights from Tokios Tokelés and TSA Spectrum de Argentina

Martin, Antoine (2011) International investment disputes, nationality and corporate veil: some insights from Tokios Tokelés and TSA Spectrum de Argentina Transnational Dispute Management, 8 (1). ISSN 1875-4120

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Abstract

Article 25 of the ICSID Convention limits the jurisdiction of the Centre to legal disputes arising directly out of an investment between a contracting state and a ‘national’ of another contracting state. Treaty protection, that is, is conditioned by the recognition of the ‘foreign’ nature of an investment, by way of either a place of incorporation or a control test. In practice, arbitrators recently had to elaborate on the significance of ‘nationality’ and to establish what constitutes a ‘foreign’ investment. Arbitral tribunals have had to consider cases opposing host-states to their own nationals as well as to foreign investors who allegedly did not have the nationality of the other Contracting Party. This comment compares facts and corporate structures in Tokios Tokelés v. Ukraine and TSA Spectrum v. Argentina Republic as well as the differences in BIT provisions explaining the tribunals’ respective findings. Two questions are also considered. First, does ICSID arbitrators’ jurisdiction encompass lifting the corporate veil in the absence of an explicit authorisation to do so in the Convention? Second, notwithstanding ‘BIT-shopping’ discussions which overall remain policy-oriented, should the real source of authority of the investment be looked for in claims opposing states to their own nationals?

Item Type: Article
Additional Information: © Copyright TDM 2011.
Uncontrolled Keywords: foreign direct investments, FDI, investors nationality, foreign control, ICSID article 25, tokios tokelès, TSA Spectrum
Related URLs:
Divisions: Faculty of Business, Economics and Law > Law
Depositing User: Antoine Martin
Date Deposited: 06 Apr 2011 13:36
Last Modified: 23 Sep 2013 18:40
URI: http://epubs.surrey.ac.uk/id/eprint/2811

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