Piercing the‘National’Veil of State-Backed Investors in ICSID Arbitration: Beyond Broches Test and ARSIWA

Kento Nisugi
Additional contact information
Kento Nisugi: Osaka School of International Public Policy, Osaka University

No 23E003, OSIPP Discussion Paper from Osaka School of International Public Policy, Osaka University

Abstract: Amidst the rising influence of State-owned enterprises and sovereign wealth funds, the eligibility of State-backed investors to claim standing as a claimant before an ICSID tribunal emerges as a significant point of contention. The established‘Broches test’suggests that State-ownership per se does not disqualify an entity from being a ‘national’ under Article 25 of the ICSID Convention. However, the ambiguities inherent in its content and legal authority have yielded varied interpretations. A newer perspective suggests relying on attribution standards reflected in the Articles on Responsibility of States for Internationally Wrongful Act (ARSIWA) for guidance. This article examines critically these prevalent approaches and obstacles to the transplantation of ARSIWA’s attribution rules to this specific context. Instead, it proposes a method for piercing the ‘national’ veil of State-backed investors in accordance with the general principle of law of abuse of legal personality and process. This proposed framework strikes a proper balance between safeguarding the integrity of the ICSID system and ensuring State-backed investors’ access to ICSID. Moreover, this article paves the way for future tribunals by drawing inspiration from the parallel practice of the European Court of Human Rights.

Keywords: International investment law; Investor-State arbitration; ICSID; State-backed investors; Broches test; ARSIWA; Attribution; Piercing the veil (search for similar items in EconPapers)
Pages: 28pages
Date: 2023-10
New Economics Papers: this item is included in nep-law
References: Add references at CitEc
Citations:

Downloads: (external link)
https://www.osipp.osaka-u.ac.jp/archives/DP/2023/DP2023E003.pdf (application/pdf)

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:osp:wpaper:23e003

Access Statistics for this paper

More papers in OSIPP Discussion Paper from Osaka School of International Public Policy, Osaka University Contact information at EDIRC.
Bibliographic data for series maintained by Akiko Murashita ().