Investor Presentaiton
97
a claim because it has an investment in the host State. Offering
protection to an investor frequently implicates the treatment
accorded to the investment. Further, that investment will often take
the form of a company established by the investor under the host
State law.
In the simplest case, if an investor holds a majority shareholding
in a local enterprise, the investor would initiate arbitral proceedings
about mistreatment of the investment (strictly speaking, its
shareholding) and claim damages arising therefrom. This may pose
challenges in terms of calculating compensation because the damage
to the enterprise and the prorated damage to the shareholder are not
the same and may depend, for example, on the dividend policy of
the enterprise and on other factors."
91
Some IIAs accord the status of an "investor" to the local
enterprise itself. For instance, Article 8(3) of the Lebanon-Slovakia
BIT (2009) provides:
"For the purposes of this Article [on ISDS] and Article
25(2)(b) of the said Washington Convention,[92] any legal
person which is constituted in accordance with the laws and
regulations of the Contracting Party and which, before the
dispute arises, was controlled by an investor of the other
Contracting Party, shall be treated as a national of the other
Contracting Party." (Emphasis added).
91 On the relevant issues and the way they have been approached in
practice, see Ripinsky with Williams, 2008, pp. 148–161.
92 Article 25(2)(b) of the ICSID Convention allows States to agree that, for
the purposes
s of ICSID arbitration, a company holding the nationality of the
Contracting State party to the dispute shall be considered to be a company
of the other Contracting State if, immediately prior to the action giving rise
to dispute, nationals of that State controlled it.
UNCTAD Series on International Investment Agreements IIView entire presentation