Protection of Taiwanese Investors Under Third Party Bilateral Investment Treaties? - Ways, Means and Limits of 'Treaty Shopping'

Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 145-177, November 2011

33 Pages Posted: 30 Nov 2011 Last revised: 18 Dec 2011

See all articles by Stephan Wilske

Stephan Wilske

Heidelberg University; Leibniz Universität Hannover; German University for Administrative Sciences Speyer

Date Written: November 30, 2011

Abstract

This paper deals with whether and to what extent Taiwanese investors may seek protection of their foreign investment under bi-lateral investment treaties (BITs) concluded by third parties. After a description of Taiwan's current system of bilateral investment agreements, the author points to the fact that pursuant to the People's Republic of China's - One-China Policy Taiwan belongs to the PRC, a position which is not openly contradicted by most of the PRC's current 127 BIT contract partners. Accordingly, the author concludes that there are no convincing arguments why a Taiwanese investor should not be entitled to seek protection under the PRC's BITs. In addition, the author discusses classical - treaty shopping and outlines ways, means and limits of such - treaty shopping The article concludes that investors who seek protection of their investment abroad have more possibilities than simply relying on the BITs of their own home country, and that in particular for Taiwanese investors one strategic step of surprising simplicity might be to claim protection under the 127 BITs concluded by the PRC.

Keywords: abuse of arbitral procedure, bilateral investment treaties, bond of economic substance, corporate nationality, foreign direct investment, denial of benefit clauses, forum shopping, free trade agreements, genuine link test, International Centre for the Settlement of Investment Disputes (ICSID)

Suggested Citation

Wilske, Stephan, Protection of Taiwanese Investors Under Third Party Bilateral Investment Treaties? - Ways, Means and Limits of 'Treaty Shopping' (November 30, 2011). Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 145-177, November 2011, Available at SSRN: https://ssrn.com/abstract=1966429

Stephan Wilske (Contact Author)

Heidelberg University ( email )

Grabengasse 1
Heidelberg, 69117
Germany

Leibniz Universität Hannover ( email )

Welfengarten 1
D-30167 Hannover, 30167
Germany

German University for Administrative Sciences Speyer

Freiherr vom Stein Strasse 2
Freiherr vom Stein Strasse 2
Speyer, D-67346
Germany

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