Instrumentalising Nationality: Strategic Planning by Natural Persons in Investment Law (78551)

Session Information: Politics and Economic Management
Session Chair: Jiwei Wu

Saturday, 25 May 2024 11:50
Session: Session 2
Room: Room 607
Presentation Type: Oral Presentation

All presentation times are UTC + 9 (Asia/Tokyo)

How do investors use nationality to ensure favourable investment outcomes? In this paper, I examine the strategic acquisition or change of nationality in the context of investors (natural persons). I build on Manuel Casas’ proposition, which noted that the "acquisition of a nationality of convenience after a dispute has arisen, or when it is clearly foreseeable, is problematic." Indeed, arbitral tribunals have recognised on multiple occasions that corporate restructuring and treaty shopping constitute an abuse of rights and process.

In contrast to corporate investors, the malicious intent of natural persons in the acquisition or change of nationality, or use of the more favourable of multiple nationalities is hard to establish. The existing case law similarly fails to offer a viable solution. Thus, I investigate potential criteria for evaluating nationality abuse, exploring the applicability of the notions developed in cases with corporate persons (such as ‘sole purpose’ and foreseeability of the dispute) to natural persons. Moreover, drawing from other disciplines (such as private international law), I discuss alternative approaches to elucidating the abuse of nationality. Given the increasing frequency of disputes involving natural persons, this paper will propose a mechanism to uphold the stability of the investment regime and counter potential abuses of process in investment disputes.

Kseniia Soloveva, Leiden University, Netherlands

About the Presenter(s)
Kseniia Soloveva is a PhD Candidate at Leiden University. Her professional experience includes working for a law firm specialising in inter-state disputes and as a Policy, Procedure and Legal Coordination Consultant at the OPCW.

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Posted by Clive Staples Lewis

Last updated: 2023-02-23 23:45:00