Nationality of Corporate Investors under International Investment Law

Anil Yilmaz Vastardis is Lecturer at the University of Essex School of Law.

Who is protected under international investment agreements? Issues relating to nationality of corporate investors have been at the forefront of the recent debates about the present and future of international investment law. Among other things, the ability of firms to deploy their corporate form to cherry pick protections have caused much concern not only among scholars but also policymakers in both developed and developing states. Yet although such debates have generated a considerable body of literature, this book is the first of its kind to explore corporate nationality under international investment law in a critical and comprehensive manner. The book makes a novel contribution to international legal scholarship by tackling the subject with analytical rigour and eloquence in equal measure. In unveiling the systemic issues behind the backlash against international investment law, Yilmaz-Vastardis combines a meticulous analysis of the complex legal issues with a refreshing critical exposition of the context in which the law operates. The book will become a classic and a main point of reference for both scholars of international investment law and experts involved in drafting and interpreting investment treaty instruments.

• Introduction I. A Case against the Expansionist Approach to Personal Scope of IIL Protections II. Structure of the Analysis PART IFUNDAMENTAL ELEMENTS OF CORPORATE NATIONALITY IN IIL: CONDITIONS OF ACCESS TO PROTECTION,NATIONALITY AND CORPORATE PERSONALITY1. 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 Meaningof ‘Genuine Link’ I. Nationality of IndividualsII. 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 IIUNDERSTANDING CORPORATE NATIONALITY4. 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 IIIPROBLEMS AND SOLUTIONS6. 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