Study On The Claims Of Shareholders In International Investment Arbitration

Under investor-state investment dispute settlement mechanism, whether shareholders own claims is one of the hot topics of contemporary international investment law. Shareholder is the concept of domestic law, and in view of the theory of domestic company law, shareholders generally do not own right of claims. However, with the perfection of investor-state investment dispute settlement mechanism and repeatedly practice of investment arbitration, the shareholders'claims draw constant attention. Generally speaking, investors have the right to bring claims against the host, so whether shareholders have the status of investors is very important issue. Through analyzing the status of the shareholders under the international investment law and summarizing the international investment arbitration practice, this article elaborates on the current recognition situation of shareholders'actual claims, and proposes advice on China's regulation and strategy on shareholders'claims.The first section introduces the concepts and features of investor-state investment dispute resolution mechanism and the legal status of shareholders in international investment law. By analyzing the definition of investment in investment agreement, this section deems that the shares held by shareholders belong to investment under the investment agreement, establishes the legal status of shareholders as investors under international investment agreements, and thus further analyzes shareholders'claims in international investment arbitration and its legal basis.The second section analyzes shareholders'claims under different investment modes as investors through case studies. According to different situations in which the arbitral tribunal of international investment arbitration recognizes claims of controlling shareholders of host local companies and minority shareholders, claims of shareholders of indirect equity in investment in the host, and claims of shareholders of the indirect losses and shareholders in multiple claims, this section analyzes and summarizes attitudes the arbitral tribunal holds towards shareholders'claims in investor-state investment dispute resolution mechanism.The third section analyzes the provisions on the claims of shareholders in China's domestic laws and international treaty that China joined in, brings forward the existing problems of shareholders'claims in international investment arbitration. And based China's economic situation, this section proposes that China should adopt prudent strategy in dealing with investment agreements and draw lessons from cases in international investment practice, so as to take precautions to potential problems. Rejecting shareholders'claims will affect the investment strategies of foreign investors; while blindly loosening restriction will lead to litigation dilemma.