We are pleased to announce that we have published the first comprehensive empirical study on corporate restructuring and investment treaty protections, in collaboration with the British Institute of International and Comparative Law. The study examines all publicly available decisions of investor-state tribunals dealing with issues of corporate structuring and restructuring.
Over 2,300 international investment treaties currently in force commit to promote and protect investments made by foreign investors. Through careful corporate restructuring, businesses seek to benefit from legal protections contained in investment treaties. They can do so by introducing in the chain of ownership of the investment, a company incorporated in a country which has signed an investment treaty with the host state. This type of restructuring provides investors with a gateway to international law protection of their rights. The nature of such legal protections is procedural, such as access to an independent and impartial arbitration tribunal, and substantive, such as protection from unlawful expropriation. An investor can directly enforce such rights against the state hosting the investment.
To some, structuring investments to benefit from these protections is completely acceptable and no more than sensible risk management; to others, this form of “treaty shopping” is an abuse of the intricate system of investment protection which has developed in public international law. In a number of investment treaty cases, respondent states have objected to the claim on grounds of investment restructuring. The decisions on corporate restructuring turn on their specific context, both legal and factual. This study breaks them down to draw out key trends. It identifies the legal, factual and regional indicators that ultimately have an impact on whether a challenge on the grounds of corporate structuring is likely to succeed.
Please CLICK HERE to access your copy of this study now.
