Jorun Baumgartner, Treaty Shopping in International Investment Law

Abstract

Corporate (re)structuring occurs for various reasons, one of which may be to gain access to more favourable jurisdiction under a certain nationality than under a previous one. Baumgartner identifies areas of concern, corporate motives, and advantages of nationality planning. The author then examines the practice of treaty shopping in international investment law in an attempt to delimit legitimate nationality planning from treaty abuse, scrutinising closely the legal approaches taken by arbitral tribunals and analysing them systematically. Especially interesting with regard to jurisdiction is the author’s analysis on jurisdiction ratione temporis in the context of nationality planning and treaty shopping. The author also makes suggestions de lege ferenda to reform international investment agreements so as to contain treaty shopping. The role of the principle of good faith is discussed in a separate chapter. In the last part of the book, an annex lists the most important arbitral decisions on the subject sorted according to their key legal statements.