Territoriality in Investment Arbitration: The Case of Financial Instruments

Journal of International Dispute Settlement 2018, issue 9, p. 315–338

26 Pages Posted: 3 Sep 2018

See all articles by Caroline Kleiner

Caroline Kleiner

University of Strasbourg, Faculty of Law

Francesco Costamagna

Università degli Studi Torino

Date Written: January 1, 2018

Abstract

This article deals with the continuous relevance of territoriality as a condition that limits the reach of the international regime for the protection of foreign investments. In particular, the analysis focuses on the possibility to consider as ‘protected investments’ financial transactions that, due to their immaterial character, have very weak territorial roots. The main point of contention is whether these transactions fulfill the so-called territorial requirement, enshrined in the overwhelming majority of international investment agreements, according to which only investments made ‘in the territory’ of the host State fall within their scope of protection. More specifically, this contribution addresses this issue from the perspective of jurisdiction of investment arbitral tribunals. Indeed, investment arbitral tribunals have jurisdiction over disputes concerning an investment localized in the territory of the host state. This contribution aims at identifying the methods for the localization of financial investments in the view of determining jurisdiction.

Keywords: Investment Arbitration, International Arbitration, Territoriality, International Financial Law, Sovereign Debt, Public International Law, Private International Law, International Economic Law

Suggested Citation

Kleiner, Caroline and Costamagna, Francesco, Territoriality in Investment Arbitration: The Case of Financial Instruments (January 1, 2018). Journal of International Dispute Settlement 2018, issue 9, p. 315–338, Available at SSRN: https://ssrn.com/abstract=3238023

Caroline Kleiner (Contact Author)

University of Strasbourg, Faculty of Law ( email )

1 place d'Athènes
BP 66
Strasbourg cedex, 67045
France

Francesco Costamagna

Università degli Studi Torino ( email )

Italy

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