Legal Responses to Corporate Manoeuvring in International Investment Arbitration

Abstract

Host states not infrequently find themselves responding to claims by investors under international investment agreements (IIAs) following a series of corporate steps to enable the claim to take place: restructuring of existing chains of corporate ownership; transfers of assets to new or existing entities; or changes in corporate nationality. These corporate manoeuvres can create legal difficulties for investor claimants in both procedural and substantive terms. If the actions precede the claim but post-date the underlying ‘dispute’, the investor may be unable to enjoy the protection of the relevant IIA. If the actions indicate that the investment is not in fact owned or controlled by the claimant, treaty protection may be similarly barred based on the definition of investment or investor or the inclusion of a ‘denial of benefits’ clause. Finally, at least the most egregious forms of corporate manoeuvring may constitute an ‘abuse of rights’, in view of an ongoing or foreseeable dispute with the host State, again excluding the investor from protection under the relevant IIA. The incoherent manner in which tribunals have resolved these questions makes their resolution unpredictable, including in the Philip Morris v Asia case currently underway under the Hong Kong–Australia Bilateral Investment Treaty. Less formalistic responses and a willingness to recognize a doctrine of abuse of rights could assist in increasing consistency in this important area of international investment law.