Towards limiting treating shopping in international investment law and arbitration: a critical analysis of the effectiveness of the denial of benefits clause

[摘要] The question of who qualifies as an investor stands as one of the foundational issues of international investment law. However, it has been argued that the notions of nationality and the origin of capital are increasingly irrelevant within structure of international investment law. According to this view, practices such as treaty shopping have been submitted as being a true reflection of the multilateralized nature of investment law and a manifestation of its purpose. However, the response of other stakeholders in the regime particularly host states, suggests that this view lacks consensus. One of the manifestations of this differing position is the increasing incorporation of the denial of benefits (DOB) clause as an in-treaty mechanism for limiting the practice of treaty shopping in international investment agreements and treaties. The DOB clause has been argued to be an effective remedy possessing the potential of limiting treaty shopping, and serving as a vehicle for birthing stability and predictability in international investment law and arbitration. It is the veracity of this position that this work seeks to test. At the heart of this research is the determination of the question of the effectiveness of the DOB clause as a mechanism for limiting treaty shopping.

[发布机构] University:University of Birmingham;Department:Birmingham Law School

[关键词] K Law;K Law (General)