Date of Award

11-2020

Document Type

Dissertation

Degree Name

Doctor of Juridical Science (SJD)

Abstract

This study examines the limitations of treaty shopping in international investment law and arbitration by recognizing some steps and factors that states, especially developing states, and arbitral tribunals may consider regarding the purpose and objective of investment agreements and contracting states’ viewpoints. The focus is solely on the multinational corporation as a corporate investor. To understand these limitations, this study has divided the topic through three separate research questions. The first question is how a state can regulate MNCs in a way that limits their ability to practice treaty shopping, whether domestically or internationally via BITs or regional investment agreement, through restriction the substantive protection. The second question provides a proposed new test for the state that wants to curb treaty shopping by reasonably determining the nationality of the investor and drafting the BITs carefully by including the proposed denial of benefits clause. The final question addresses the practical aspects of this study, which are directed to the arbitral tribunals, such as how they can deal with the treaty shopping cases in determining jurisdiction and admissibility under the ICSID convention. At present, these issues are strikingly unsettled while the tribunals hold inconsistent decisions to resolve the previous questions. This study has goals to clear the ambiguity of treaty shopping by proposing several solutions, as the instability and unpredictability in international investment law is unsatisfactory for both states and investors.

Available for download on Saturday, November 25, 2023

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