International Investment Disputes, Nationality and Corporate Veil: Some Insights from Tokios Tokelés and TSA Spectrum De Argentina
The Chinese University of Hong Kong (CUHK) - Faculty of Law
March 24, 2011
Transnational Dispute Management, Vol. 8, No. 1, February 2011
Article 25 of the International Centre on the Settlement of Investment Dispute 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?
Number of Pages in PDF File: 18
Keywords: ICSID, FDI, foreign direct investment, investors, nationality, Tokios, TSA Spectrum, Transnational Dispute Management
Date posted: March 10, 2011 ; Last revised: March 30, 2011