Policy Considerations on the Definition of an Investor in the International Investment Agreements

AbstractThis chapter focuses on the impact of the international law of foreign investment on tax issues with a view to assessing the interactions between the two regimes and identifying potential signs of convergence. In particular, this chapter focuses on the operation of International Investment Agreements (IIAs) and assesses the role of IIAs from the perspective of foreign investors vis-à-vis National Tax Measures (NTMs). Part I of this chapter provides an understanding of the convergence between investment law and tax issues. This aids in an understanding of the key characteristics of IIAs (such as the definition of investment and the use of specific tax exceptions) and the relationship between currently existing IIAs and tax disputes. Part II analyzes, both quantitatively and qualitatively, the recent trends of tax disputes in investment arbitration. Part III assesses how tax can be seen as the last barrier to cross border investment. Part IV concludes.

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Defining a State-Owned Enterprise in International Investment Agreements

ICSID Review - Foreign Investment Law Journal ◽

10.1093/icsidreview/siz011 ◽

2019 ◽

Vol 34 (3) ◽

pp. 595-625

Author(s):

Mark McLaughlin

Keyword(s):

International Investment ◽

Investment Activity ◽

Legal Personality ◽

International Investment Law ◽

Policy Choices ◽

Commercial Activities ◽

International Investment Agreements ◽

Investment Law ◽

Definition Of ◽

Investment Agreements

Abstract The objective of this article is to establish a unified conceptual framework for State-owned enterprises in international investment law. I hope to furnish drafters and negotiators with the tools to define such enterprises in accordance with their policy concerns. The central thesis is that five definitional criteria must be considered: (i) separate legal personality; (ii) extent and form of control; (iii) eligible governmental units; (iv) nature of activity; and (v) purpose of activity. While variations within each criterion can reflect the policy choices of contracting parties, failure to adequately delimit the boundaries of all five will confer discretion on arbitrators to do so. Application of this framework to existing international investment agreements reveals that many bilateral investment treaties are insufficiently precise as to the definition of State-owned enterprises. However, the Trans Pacific Partnership addresses all five criteria, and limits the scope of covered entities to those that are ‘principally engaged in commercial activities’ and have an ‘orientation towards profit making’. China’s strategic initiatives could necessitate a response that would further fragment the international investment regime. Furthermore, interpretive issues remain in relation to the scope of ‘effective influence’ and determining the purpose of investment activity.

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EVOLUTION OF THE LEGAL CONCEPT OF "FOREIGN INVESTMENT" IN A NETWORK SOCIETY

Lex Russica ◽

10.17803/1729-5920.2019.156.11.088-095 ◽

2019 ◽

pp. 88-95

Author(s):

N. N. Viktorova

Keyword(s):

South African ◽

Foreign Investment ◽

International Investment ◽

African Development ◽

Bilateral Investment Treaty ◽

Investment Treaty ◽

International Investment Agreements ◽

Definition Of ◽

Investment Agreements ◽

Portfolio Investments

The paper deals with the problems of definition of the concept "investment" in multilateral and bilateral investment treaties. The author shows how the approach to the definition of "investment" in international investment agreements has changed over time, how this concept differs in modern agreements from those enshrined in agreements concluded more than ten years ago. It is noted that today we can talk about the trend of a broad definition of the concept of investment in international treaties, that is, investments are understood as any kind of property values; further the author specifies what applies to them.International treaties on the protection and promotion of investment also include the right to engage in business activities. It turns out that investment disputes can arise from ordinary commercial activities, for example from a contract of sale. However, there are documents that do not include monetary claims arising from commercial contracts, such as the 2012 model bilateral investment Treaty of the South African development Community.Generally, investment protection agreements do not distinguish between direct and portfolio investments. Therefore, portfolio investments also enjoy the protection of these investment treaties. However, some of the international investment agreements that are currently being concluded specify that portfolio investments are excluded from their scope, such as the Model bilateral investment Treaty of the South African Development Community.In the literature there are three approaches to the qualification of foreign arbitral awards as a foreign investment. According to one of them, the award is an investment, because it is part of the entire activity of the investor. Some modern international investment agreements contain provisions according to which arbitration, judicial decisions are not investments.

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Part III Guide to Key Jurisdictional Issues, 10 Who is Entitled to Claim?: The Definition of Nationality in Investment Arbitration

10.1093/law/9780198758082.003.0010 ◽

2018 ◽

Author(s):

Yannaca-Small Katia

Keyword(s):

Home Country ◽

International Investment ◽

Legal Person ◽

Investment Arbitration ◽

International Investment Agreements ◽

Dual Nationality ◽

Scope Of Application ◽

Investment Agreement ◽

Definition Of ◽

Investment Agreements

One of the main elements setting the scope of application ratione persona of international investment agreements is the definition of the investor. An investment agreement applies only to investors who qualify for coverage under its relevant provisions; only they can submit a claim against the host State. The definition identifies the group of investors whose foreign investment the home country is seeking to protect through the agreement as its ‘nationals’, as well as the ‘clients’ and the investments the host country wishes to attract. This chapter deals with the nationality of the investor, whether a natural or legal person; the criteria used by investment agreements to attribute this nationality, and the arbitral awards that support this qualification. For natural persons, the issues are usually not problematic, although some may arise in particular with regard to dual nationality. For legal persons, the debate remains far more complex.

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Round-Tripping in International Investment Law: A Teleological Assessment

The Journal of World Investment & Trade ◽

10.1163/22119000-12340215 ◽

2021 ◽

Vol 22 (3) ◽

pp. 459-501

Author(s):

Marc-Antoine Couet

Keyword(s):

Dispute Settlement ◽

Case Law ◽

International Investment ◽

International Investment Law ◽

Domestic Capital ◽

International Investment Agreements ◽

Investment Law ◽

Definition Of ◽

Comprehensive Framework ◽

Investment Agreements

Abstract This article addresses the issue of round-tripping investment in international investment law (IIL), which is domestic capital fleeing the home country and then flowing back in the form of foreign direct investment (FDI). It provides a functional definition of this concept and identifies why it may be considered a peculiar type of FDI. It also sets out a comprehensive framework for the treatment of round-tripping investment in IIL by analyzing whether international investment agreements do protect round-tripping investors and their investments and by reviewing how investor-State dispute settlement case-law has dealt with objections put forward by respondent States to round-tripping investors bringing their investment claims to international arbitration. Lastly, this article attempts to answer the question ‘should round-tripping investment be protected under IIL?’ by verifying whether the economic and legal reasons that justify according a differentiated treatment to foreign investors also apply in the case of round-tripping investors.

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Investing in Development: The Role of Democracy and Accountability in International Investment Law

Alberta Law Review ◽

10.29173/alr214 ◽

2009 ◽

Vol 46 (4) ◽

pp. 1009 ◽

Cited By ~ 3

Author(s):

Graham Mayeda

Keyword(s):

Sustainable Development ◽

Developing Countries ◽

International Investment ◽

Socially Responsible ◽

International Investment Law ◽

International Investment Agreements ◽

Investment Law ◽

Definition Of ◽

Investment Agreements

This article explores whether international investment agreements (IIAs) have the potential to impede democratic expression and, as a result, hinder sustainable development. The author first demonstrates that democracy plays an essential role in the promotion of sustainable development and provides a normative (rather than procedural) definition of democracy. The three ways in which IIAs can limit democracy are then addressed. First, they can limit the policy space of developing countries. This is demonstrated through an analysis of how types of provisions commonly found in IIAs can negatively affect policy flexibility. Second, democracy can be indirectly limited through the decisions of international investment tribunals which give little deference to the decisions of domestic democratic forums. Third, democracy can be undermined if foreign investors are not accountable to any democratic government. In this regard, it is necessary for IIAs to impose obligations on home states and investors to ensure that investors behave in socially responsible ways. The article concludes with suggestions for ways in which developing countries can structure IIAs to support democracy rather than detract from it.

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