Niloofar Saeedi; Pouria Askary
Abstract
Sometimes foreign investors after the dispute have arisen or when it is predictable and with the intention of bringing the dispute to arbitration, change their nationality or acquire new nationality. The phenomenon called Nationality Planning eases foreign investors’ access to a desirable treaty ...
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Sometimes foreign investors after the dispute have arisen or when it is predictable and with the intention of bringing the dispute to arbitration, change their nationality or acquire new nationality. The phenomenon called Nationality Planning eases foreign investors’ access to a desirable treaty and increases the chance of bringing disputes against host states.So host states try to avoid these disputes by raising objections to Ratione Temporis or claiming abuse of rights. Arbitration tribunals’ approach towards their Ratione Temporis and abuse of rights is material in host states’ success in limiting Nationality Planning. So the question to be answered is that what requirements are considered by arbitrations in determining Ratione Temporis and abuse of rights and how these two are different. Arbitral precedent shows that these tribunals make distinction between cases of nationality planning contrary to their Ratione Temporis and cases that are considered as abuse of rights. However, in practice their strict approach results in limited acceptation of objections to Ratione Temporis or abuse of rights claims.
hamid reza oloumi yazdi; somayeh mohammadi
Volume 16, Issue 43 , February 2015, , Pages 47-80
Abstract
The Umbrella Clause has nearly become one of the most common rules of the mostinvestment treaties, which provides more protections for foreign investor. Providinga proper and true sense of this clause has become highly controversial issue ininternational investment law that has led many arbitral tribunals ...
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The Umbrella Clause has nearly become one of the most common rules of the mostinvestment treaties, which provides more protections for foreign investor. Providinga proper and true sense of this clause has become highly controversial issue ininternational investment law that has led many arbitral tribunals to adopt specificstance in this respect. Here, the fundamental point is whether the forum stipulated inthe bilateral investment treaty is competent to settle disputes, which are arisen frominvestment contract between host State and foreign investor, or not? If it so, then thenext question would be: what will be the effect of the determining the forum bystipulated dispute settlement clause in the contract. Does this clause turn contractclaims into the treaty claims? And what will be the impacts and limits of this clause?Answering to these questions, the arbitral tribunals have responded in two differentways. Some of them have interpreted the clause in a narrow sense; they havedistinguished sovereign from non-sovereign act of host State. According to theirpoint of view, the Umbrella Clause of BIT may be violated if the host State measure,in breaching its contractual obligation, is applied on the basis of its sovereignty. Incontrast, the other tribunals have interpreted this clause in a broad sense which theviolation of any contractual obligation of host State leads to a breach of this clauseand consequently the forum in the investment treaty is qualified to hear the dispute.It seems that the broad interpretation and second approach is more logical in theinterpretation of the clause; it is also more consistent with the purpose and historyof the emergence of this clause and makes it more efficient.