Die Grenzen der Zulässigkeit des »nationality planning"im Investitionsschutzrecht

Investors increasingly adapt their corporate structures to situate themselves within the ambit of international investment agreements in order to benefit from substantive and procedural guarantees. While there is rather broad consensus in tribunal decisions and academia that such nationality planning is not prohibited per se, it has been criticized for undermining the reciprocity of international investment agreements and for benefiting free-riders. This article first surveys the possibility to engage in nationality planning as a product of the nationality criteria delimiting the personal scope of application of international investment agreements. Subsequently it critically examines two limits set to nationality planning by States and arbitral tribunals. First, it looks at denial of benefits clauses. The article questions the exclusively prospective temporal application that has been given to the clauses by some tribunals and argues that a retrospective application would be preferable in light of their object and purpose. Second, it critiques the emergence of the foreseeability of the dispute as a decisive standard to distinguish between an abuse of rights and legitimate nationality planning. If one considers nationality planning generally legitimate, the timing of the restructuring should make no difference. Either all nationality planning should be prohibited or only corporate restructurings that internationalize domestic disputes should be removed from the scope of application investment treaty under the abuse of rights principle. For the sake of coherence tribunals should choose between the two.