Investor Presentaiton
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Another issue is dual nationals persons with citizenship in
more than one States. Many treaties do not address the status of dual
nationals, which can lead to the conclusion that they are entitled to
the protection of the treaty. One might compare Article 25(2)(a) of
the ICSID Convention, which explicitly precludes claims by persons
with the nationality of both the home and host State. A number of
IIAs also exclude dual nationals from treaty coverage. In the
absence of such an exclusion, it might be possible for a national of
the host State to bring an IIA claim against that State because he/she
also has the nationality of the other contracting State.
Legal persons. In terms of the range of entities covered, IIAS
may include or exclude certain specific categories of entities, for
instance: branches of enterprises, non-profit entities and/or
government-owned entities or entities without legal personality. Of
even greater importance are the criteria used to define the nationality
of a legal entity. These may be the place of company's
incorporation, the location of the company's seat or principal place
of business and the nationality of ownership or control. Each of
these different criteria has an effect on whether a particular entity
will be covered by the treaty.
Furthermore, some IIAs expressly recognize subsidiaries of
foreign investors established in the host State as "covered investors"
and, therefore, enable them to bring ISDS claims.
Finally, denial-of-benefits clauses play a role in this context.
They are designed to deny treaty protection to "shell", or "mailbox",
companies established in a contracting State party by third-country
nationals without any real business activities in the country of
establishment. Denying protection to such “mailbox" companies
equips States with an additional instrument to narrow the range of
covered corporate entities.
UNCTAD Series on International Investment Agreements IIView entire presentation