The Defining Problems And Solutions Of The Qualified Investor In The Investor-State Arbitration

In investor-state arbitration,the qualified investor and the qualified investment are two different but related concepts: the former concerns with ratione personae jurisdiction;the latter concerns with ratione materiae jurisdiction.The components of the qualified investor can be divided into subject and conduct part.The subject condition,which differs between the natural person investor and the company investor,is the specific regulations of the investor’s appearance.The conduct condition puts requirements on investors’ behaviors like territory,time and attribute.Defining qualified investors is the base of investor-state arbitration.As the prerequisite of the tribunal’s ratione personae jurisdiction,only the investor is qualified can the arbitration process start.Therefore,defining a qualified investor is vital for the process of investor-state arbitration.However,according to the international investment treaties and investor-state arbitration practices,the tribunal faces a series of problems when they define the qualified investors.This paper studies the most typical and controversial three problems of them: nationality of investors,the commercial subject position of state-owned enterprises and shareholders’ indirect claims.The nationality is the important element to distinguish investors,but the dual nationality and nationality planning put uncertain factors on it,which makes the tribunal difficult to determine investor’s nationality.Possessing double attributes of politics and commerce,the state-owned enterprise investors are frequently questioned about their qualifications when they put forward an investor-state arbitration.The domestic law and custom international law generally forbid shareholders issuing an arbitration in represent of a company,but some international investment treaties admit this qualification of shareholders.This paper is based on investor-state arbitration practice,aims at the three problems and give different solutions respectively.In conclusion,this paper is composed of four chapters.The first chapter is an overview of the qualified investor.It contains the comparison between the qualified investor and the qualified investment to clarify the position that the qualified investor has in investor-state arbitration,and the components of the qualified investor.The second chapter is about the three problems of defining the qualified investor in investor-state arbitration.At the beginning,this chapter illustrates the connection between these three problems and the components.Then this chapter gives a detailed explanation about nationality of investors,the position of the state-owned enterprise investors and shareholders’ indirect claims.The third chapter aims at the reflection and solutions of the defining problems.It firstly analyses the roots of the three problems and the influences the problems put on investor-state arbitration.Then it gives different solutions respectively.The last chapter is mainly about the defining problems in China.What shortages about the regulations concerning the qualified investor the Chinese investment treaties have is discussed in this part,and the solutions also are given one by one.