Recent Efforts to Curb Investment Treaty Shopping: How Effective Are They?

Abstract

In recent years it can be observed that states increasingly introduce explicit limitations to the practice of treaty shopping in their investment agreements. Accordingly, substantive ratione personae requirements, denial of benefits clauses, and anti-circumvention clauses are often included in newly signed investment treaties. In addition to these new drafting trends, arbitral tribunals have developed an implicit limitation in the form of the abuse of process doctrine to sanction the most egregious forms of treaty shopping. While these drafting trends as well as arbitral practice can curb undesired treaty shopping to a certain extent, this article argues that only a multilateral reform effort is able to truly prevent this practice from occurring. Treaty Shopping, Nationality Planning, Corporate Structuring, ISDS Reform, UNCITRAL, Ratione Personae Requirements, Denial of Benefits Clauses, Abuse of Process