The Bona Fide Investor: Corporate Nationality and Treaty Shopping in Investment Treaty Law

<p>This thesis addresses the problem of treaty shopping in investment treaty law. It seeks to illustrate how the problem stems from, and can in part be resolved by, the concept and definition of corporate nationality. It explores whether, and if so how and what, limits ought to be placed on the manipulation of nationality for the purpose of gaining investment treaty protection, to enable a principled basis to utilise nationality to prescribe the extent of rights and obligations in investment treaties. The importance of nationality requirements in investment treaties cannot be overstated—the definition of “investor” in any treaty defines which entities are entitled to substantive protections contained in the treaty for the benefit of states and investors alike. Entities making an investment need to know whether, and if so how, they can structure their investment to achieve protection of applicable investment treaties. Investors who have suffered damage need to know whether they are entitled to make a claim. States need to appreciate the extent of their potential obligations. Many investment treaties define qualifying investors in a broad way that includes any entity incorporated in a contracting state. Putative investors, including those from third states, or nationals of the host state of the investment, seek to come within the relevant definition, often by insertion of an intermediary company incorporated in the desired home state into the ownership chain of the investment. This thesis challenges the view that fulfilment of formalities set out in an investment treaty is sufficient to qualify as an investor where there is no substance behind the corporate form. To some degree, states and investment treaty tribunals have tried to abrogate treaty shopping by manipulation of corporate nationality by reference to the international law concept of genuine connection with the claimant’s state of incorporation, or by way of imposition of criteria for nationality based on the nationality of the corporate entity’s controller or proof of substantial business activity in its state of incorporation. The majority of investment treaty tribunals, however, have eschewed efforts to imply a substantive test or check on the attribution of nationality beyond literal fulfillment of nationality criteria. This thesis promotes a purposive approach that requires fulfillment of express treaty criteria for nationality, but also subjects the claimant to a substantive economic reality check in which the inquiry is to determine the reason for existence of the corporate claimant in relation to the relevant investment. Such an approach is required by an interpretative methodology that gives equal weight to the four tenets of art 31(1) of the Vienna Convention: ordinary meaning, good faith, context and object and purpose. If a corporate entity exists primarily to procure treaty rights, then it is not a bona fide investor consistent with the object and purpose of investment treaty jurisdictional provisions, even if it complies with the ordinary meaning of the express formal nationality criteria. If, however, it meets any express criteria and has a genuine ulterior commercial reason to exist in the ownership structure of the investment, then it qualifies as an investor entitled to the protection of an investment treaty. The approach promoted by this thesis is derived from the treaty shopping antidote crafted by municipal courts assessing the bona fides of corporate applicants for tax relief under double tax treaties. In addition, the thesis analyses municipal law regarding piercing the corporate veil, the law of diplomatic protection, and analogous jurisdictional concepts in investment treaty law including the application of the principle of abuse of right, and identifies that underlying all these areas of inquiry is the central question of the purpose, or commercial reason to exist, of the relevant corporate entity. Finally, this thesis demonstrates how a substantive approach can be applied in a principled and reasonably certain way. The use of corporate structures by foreign investors to procure rights under favourable investment treaties (treaty shopping) threatens to undermine the legitimacy of international investment treaty arbitration. Simon Foote QC's research illustrates how the problem stems from the concept and interpretation of corporate nationality criteria at international law. It promotes a new way to distinguish bona fide foreign investors by looking to the commercial purpose of corporate entities in relation to the relevant investment. It illustrates how that approach derives from analogous concepts in international and municipal law and how it can be implemented by states and investment treaty tribunals.</p>

The Bona Fide Investor: Corporate Nationality and Treaty Shopping in Investment Treaty Law

<p>This thesis addresses the problem of treaty shopping in investment treaty law. It seeks to illustrate how the problem stems from, and can in part be resolved by, the concept and definition of corporate nationality. It explores whether, and if so how and what, limits ought to be placed on the manipulation of nationality for the purpose of gaining investment treaty protection, to enable a principled basis to utilise nationality to prescribe the extent of rights and obligations in investment treaties. The importance of nationality requirements in investment treaties cannot be overstated—the definition of “investor” in any treaty defines which entities are entitled to substantive protections contained in the treaty for the benefit of states and investors alike. Entities making an investment need to know whether, and if so how, they can structure their investment to achieve protection of applicable investment treaties. Investors who have suffered damage need to know whether they are entitled to make a claim. States need to appreciate the extent of their potential obligations. Many investment treaties define qualifying investors in a broad way that includes any entity incorporated in a contracting state. Putative investors, including those from third states, or nationals of the host state of the investment, seek to come within the relevant definition, often by insertion of an intermediary company incorporated in the desired home state into the ownership chain of the investment. This thesis challenges the view that fulfilment of formalities set out in an investment treaty is sufficient to qualify as an investor where there is no substance behind the corporate form. To some degree, states and investment treaty tribunals have tried to abrogate treaty shopping by manipulation of corporate nationality by reference to the international law concept of genuine connection with the claimant’s state of incorporation, or by way of imposition of criteria for nationality based on the nationality of the corporate entity’s controller or proof of substantial business activity in its state of incorporation. The majority of investment treaty tribunals, however, have eschewed efforts to imply a substantive test or check on the attribution of nationality beyond literal fulfillment of nationality criteria. This thesis promotes a purposive approach that requires fulfillment of express treaty criteria for nationality, but also subjects the claimant to a substantive economic reality check in which the inquiry is to determine the reason for existence of the corporate claimant in relation to the relevant investment. Such an approach is required by an interpretative methodology that gives equal weight to the four tenets of art 31(1) of the Vienna Convention: ordinary meaning, good faith, context and object and purpose. If a corporate entity exists primarily to procure treaty rights, then it is not a bona fide investor consistent with the object and purpose of investment treaty jurisdictional provisions, even if it complies with the ordinary meaning of the express formal nationality criteria. If, however, it meets any express criteria and has a genuine ulterior commercial reason to exist in the ownership structure of the investment, then it qualifies as an investor entitled to the protection of an investment treaty. The approach promoted by this thesis is derived from the treaty shopping antidote crafted by municipal courts assessing the bona fides of corporate applicants for tax relief under double tax treaties. In addition, the thesis analyses municipal law regarding piercing the corporate veil, the law of diplomatic protection, and analogous jurisdictional concepts in investment treaty law including the application of the principle of abuse of right, and identifies that underlying all these areas of inquiry is the central question of the purpose, or commercial reason to exist, of the relevant corporate entity. Finally, this thesis demonstrates how a substantive approach can be applied in a principled and reasonably certain way. The use of corporate structures by foreign investors to procure rights under favourable investment treaties (treaty shopping) threatens to undermine the legitimacy of international investment treaty arbitration. Simon Foote QC's research illustrates how the problem stems from the concept and interpretation of corporate nationality criteria at international law. It promotes a new way to distinguish bona fide foreign investors by looking to the commercial purpose of corporate entities in relation to the relevant investment. It illustrates how that approach derives from analogous concepts in international and municipal law and how it can be implemented by states and investment treaty tribunals.</p>

School-based HPV Vaccination: The Challenges in a Brazilian Initiative

Objective The present study assesses the implementation and the impact after 2 years of a school-based human papillomavirus (HPV) vaccination program in a Brazilian city. Methods A prospective study assessing the implementation of the program, offering quadrivalent HPV vaccine in two annual doses to girls and boys aged from 9 to 10 years old. The program was started in the city of Indaiatuba, state of São Paulo, Brazil, in 2018, and had authorization from the National Immunization Program. The number of HPV vaccine first doses applied and the coverage in 2018 was calculated and compared to the year 2017. There were described events that have influenced the results. Results The program invited 4,878 children through schools (87.1% of the target population), and 7.5% refused vaccination. Several concurrent events required or competed for health professionals of the vaccination teams. The coverage of the first dose (between 9 and 10 years old) was 16.1% in 2017 and increased to 50.5% in 2018 (p < 0.0001). The first dose in all ages increased 78% in 2018 compared with 2017 (6,636/3,733). Competing demands over the program continued in 2019, and the first dose coverage dropped (26.9%). For 2020, a municipal law instituted school-based vaccination and the creation of dedicated teams for vaccination, and these strategies are waiting to be tested. Conclusion School-based annual HPV vaccination in children between 9 and 10 years old was feasible and increased vaccination coverage, regardless of gender, although the program was vulnerable to competing events.

Actual problems of municipal law in Russia

The actual problems of municipal law in Russia are considered taking into account the peculiarities of master's degree training at the university, which provides for both the presence of a system of students with certain knowledge in the field of jurisprudence, including the main institutions of municipal law, and their significant focus on research work. Special attention is paid to the consideration of the main amendments and additions to the current legislation on local self-government, discussions that accompany the improvement of legislation and law enforcement practice. The electronic educational and methodological appendix to the textbook includes an approximate work program and educational and methodological materials for independent work on the study of the discipline, as well as lectures and presentations. Meets the requirements of the federal state educational standards of higher education of the latest generation. For students of educational institutions of higher education studying in the field of training 40.04.01 "Jurisprudence", as well as for graduate students, students of the system of additional professional education and teachers, all those who are interested in the problems of the development of municipal law, the theory of local self-government and the practice of state and municipal management.

LEGISLATIVE REGULATION OF LOCAL SELF-GOVERNMENT OF UKRAINIAN CITIES

After the proclamation of Ukraine’s independence in 1991, local self-government in Ukraine is not regulatedseparately for such administrative-territorial units as cities (exceptions are cities with a special status). Most authorsonly state this fact, but do not make constructive suggestions aimed at improving the situation.The purpose of the article is to consider and analyze the modern laws of Ukraine, which implemented the legalregulation of local self-government in the cities of Ukraine.The study of the laws of Ukraine regulating local self-government gave grounds to note that the peculiarities of localself-government in cities are fragmented in the Law “On Local Self-Government in Ukraine”, Electoral Code and arecompletely absent in such important laws-sources of municipal law as Law “On Voluntary Association of TerritorialCommunities”, “On the Status of Deputies of Local Councils”. Regarding the latest act, the following directionsof amendments aimed at differentiating the status of deputies of local councils of rural and urban settlements areproposed: differences in the rights and responsibilities of deputies of local councils and taking into account differentquantitative composition of local councils (depending on the number of members); accordingly – more or less complexinternal structure of local councils, their executive bodies.It is noted that with the adoption on February 5, 2015 of the Law “On Voluntary Association of TerritorialCommunities” at the present stage of municipal reform began to follow the trend of refusing to unify local governmentin urban and rural areas (in connection with the introduction of the institute of elders). Proposals for amendments toArt. 7 of this Law “Preparation of decisions on voluntary association of territorial communities” and on supplementingArt. 8 “Formation of a united territorial community” paragraph 1-1 in the proposed wording.

Municipal Procedural Relations and Their Types

The paper examines the content of municipal procedural relations, highlights their derivation from municipal substantive legal relations. Substantive and procedural norms in municipal law and their distinctive objectives and features of practice of their application constitute the basis for the separation of municipal procedural relations from the system of municipal legal relations. Municipal procedural legal relations arise when their participants carry out actions aimed at ensuring their powers to resolve issues of local importance. The author shows the difference between substantive and procedural legal relations according to their object and grounds of occurrence and distinguishes them according to such criteria as participants and their objective. Based on the first criterion, six types of municipal procedural relations are distinguished, according to the objective criterion, four blocks of municipal procedural relations are distinguished. Taking into account that in recent years a federal legislator has entrusted more than one and a half thousand substantive powers to local self-government bodies, the author concludes that it is necessary to intensify their law-making activities in order to develop and adopt municipal procedural acts.

The Standard Charter of a Municipality As a Means of Legal Technique

Introduction: the constitutional changes open a new round of scientific discussion about the place of municipal power in the system of separation of powers. Municipalities are experiencing a shortage of resources. Despite this, they are responsible for the development and adoption of statutes. The work is based on the hypothesis that the use of standard charters allows for more efficient use of the resources of municipalities and the improvement of the quality of the legal text. Purpose: to determine the possibility and necessity of using standard charters of municipalities. Tasks: to establish a link between the resources of a municipality and the effectiveness of its lawmaking; to analyze the examples of standard charters of municipalities; to predict the effect of the application of standard charters; to develop a roadmap for the implementation of standard charters. Methods: analysis, comparative law, predictive, statistical. Results: law-making is very burdensome for small municipalities, and the existing easing is insufficient. In foreign legislation, Russian and foreign practice, standard charters are used to save the resources of municipalities. The mechanism of standard charters has signs of smart regulation. There are two types of standard documents: template documents and model documents (actually standard documents). Conclusions: a comparison of the resources of the municipality with the scope of its rights and obligations revealed an imbalance in the legal regulation of municipal law-making. The model charters of municipalities allow us to solve this problem to some extent. We have proposed concrete steps for the legislative implementation of the legal mechanism of model charters in the digital economy. The analysis of the results of this project may confirm or refute the nature of the model statutes as a manifestation of smart regulation. In the course of the research, the author concluded that the topic of standard documents is not sufficiently studied in the science of legal technology. To eliminate this gap, it is necessary to define the concept and features of standard documents, their place among the tools of legal technology. The study of model documents is particularly important in the light of the upcoming spread of machinereadable law.

Problems and Prospects for the Development of Local Self-Government in the Russian Federation and Foreign Countries: Review of the All-Russian Conference with International Participation

On April 19-23, 2021, an All-Russian conference with international participation Problems and Prospects for the Development of Local Self-Government in the Russian Federation and Foreign Countries was held at the Law Institute of the Peoples Friendship University of Russia on the basis of the Department of Municipal Law. More than 150 scientists from the Russian Federation and foreign countries took part in the Conference. The Conference has acquired a traditional character and is being held for the fifth time. The 2021 conference was marked by a significant increase in the number of participants, both Russian and foreign. The additional relevance of the Conference was caused by the Russian 2020 constitutional reform, which has a significant impact on the development of local self-government institution in the Russian Federation. This review presents a general description of the conference, the contents of the plenary meeting and sessions.

Part 2 Asylum, 6 The Principle of Non-refoulement—Part 2

This chapter details how, under general principles of international law, State responsibility may arise directly from the acts and omissions of government officials and agents, or indirectly where domestic legal and administrative systems fail to implement the observance of international standards. The fact that the harm caused by State action may be inflicted outside the territory of the actor, or in an area identified by municipal law as an international zone, in no way diminishes the responsibility of the State. While the principle of non-refoulement does not entail a right for refugees to be granted asylum in a particular State, it does require States to ensure that whatever course of action they adopt, refugees are not sent—either directly or indirectly—to a place where their lives or freedom would be in danger on account of one of the five Convention grounds, or contrary to the principle of non-refoulement under human rights law. In order to give effect to those obligations consistently with the general rule, ‘States will be required to grant individuals seeking international protection access to the territory and to fair and efficient asylum procedures’. The chapter then looks at the relationship between the principle of non-refoulement and flight by sea.