Abuse of Rights in the Context of Corporate Nationality Planning

Abstract

Investment tribunals have applied the abuse of rights doctrine to distinguish between legitimate corporate nationality planning and objectionable manipulation of corporate nationality. This doctrine is further concretized into “the foreseeability test”, which examines whether there is a foreseeable dispute at the time of nationality planning. After revisiting related investment arbitral decisions and academic commentaries, this article argues that the abuse of rights doctrine is an appropriate tool for tribunals to combat abusive nationality planning. That said, it also identifies several unsettled issues under current case law and suggests corresponding solutions.