State Companies as Claimants Under the 1965 Washington Convention on Investment Disputes Between States and Foreign Persons
https://doi.org/10.22394/2686-7834-2023-1-47-55
Abstract
In this article, the author examines the status of state-owned companies as claimants under the 1965 Washington Convention on the settlement of investment disputes between States and nationals of other States and the competence of the International Centre for Settlement of Investment Disputes to consider claims of the stateowned companies. The paper considers possible limitations of the right of action of the state-owned companies, reflected in the so-called “Broches test”. As a result of the analysis of the case law of international investment tribunals the author concludes that the right of recourse to international investment arbitration shall in any case be available for the state-owned companies which perform a commercial function. In addition, the author proposes an algorithm for determining whether a state-owned company, which is authorized to exercise elements of state power, has the right of action.
Keywords
state-owned entities,
international investment arbitration,
Washington Convention,
International Centre for Settlement of Investment Disputes,
right of action,
Broches test
Supporting agencies: This scientific work uses the results of the strategic project “Legal Mechanisms for Overcoming Inequality”, carried out as part of the project research activities of the HSE Faculty of Law in 2022–2023.
About the Author
N. S. Andreeva
National Research University Higher School of Economics;
Better Chance JSC
Russian Federation
Russian Federation
Natalia S. Andreeva, postgraduate student, School of Legal Regulation of Business, Faculty of Law; Dispute Resolution and International Arbitration Practice of Better Chance JSC
Moscow
References
1. Boklan, D. S., Boklan, O. S., Smbatyan, A. S. Relevance of Articles on Responsibility of States for Internationally Wrongful Acts for Legal Defense in WTO Dispute Settlement Mechanism [Znachenie Statej ob otvetstvennosti gosudarstv za mezhdunarodno-protivopravnye dejanija dlja zashhity interesov storon pri razreshenii sporov v ramkah VTO]. International Justice [Mezhdunarodnoe pravosudie]. 2016. No. 4. P. 99–113. (In Rus.)
2. Broches, A. Selected Essays. World Bank, ICSID, and Other Subjects of Public and Private International Law, 1995. P. 201–202.
3. Cortesi, G. A. ICSID Jurisdiction with Regard to State-Owned Enterprises — Moving Toward an Approach Based on General International Law. The Law and Practice of International Courts and Tribunals, 2017. P. 108–138.
4. Du, M. The Status of Chinese State-Owned Enterprises in International Investment Arbitration: Much Ado about Nothing? Chinese Journal of International Law, 2022. P. 785–815.
5. Feldman, M. State-Owned Enterprises as Claimants in International Investment Arbitration. ICSID Review. Vol. 31, No. 1, 2016. P. 24–35.
6. Mohtashami, R., El-Hosseny, F. State-Owned Enterprises as Claimants before ICSID: Is the Broches Test on the Ebb? BCDR International Arbitration Review, Kluwer Law International, 2016. Vol. 3. Iss. 2. P. 371–388.
7. Shima, Y. The Policy Landscape for International Investment by Government-Controlled Investors: A Fact-Finding Survey, OECD Working Papers on International Investment. 2015/01. Р. 3–22.
Review
For citations:
Andreeva N.S. State Companies as Claimants Under the 1965 Washington Convention on Investment Disputes Between States and Foreign Persons. Theoretical and Applied Law. 2023;(1):47-55. (In Russ.) https://doi.org/10.22394/2686-7834-2023-1-47-55
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