The Determination And Controversy Of Investor's Nationality In International Investment Agreements

The vast network of international investment agreements made up of bilateral investment treaties and treaties with investment provisions is shifting markedly toward fragmentation.The ownership structure of corporations is increasingly complex because of the fragmentation of international investment agreements,varieties in national investment policies and corporation's business strategies,thus the degree of uncertainty in investor's nationality has increased.Investor's nationality has been the focus of the investor–state tribunal's determination of jurisdiction.The comparative analysis of arbitration cases shows that the key divergence in the interpretation paths of different tribunals lies in the understanding of the ICSID Convention.As rule makers,States are more inclined to require substantive business activities and include denial of benefits provision while negotiating international investment agreements,which provide tribunals with a clearer basis to determine the nationality of investor as well as improve the predictability of the protection offered by agreements.In the future,gradual consensus on the rules for the determination of the nationality of investors under the promotion of international multilateral institutions is a realistic way for the States to resolve the uncertainty in investor nationality.