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We are pleased to announce that we have published the first comprehensive empirical study on corporate restructuring and investment treaty protections, in collaboration with the British Institute of International and Comparative Law. The study examines all publicly available decisions of investor-state tribunals dealing with issues of corporate structuring and restructuring.

Over 2,300 international investment treaties currently in force commit to promote and protect investments made by foreign investors. Through careful corporate restructuring, businesses seek to benefit from legal protections contained in investment treaties. They can do so by introducing in the chain of ownership of the investment, a company incorporated in a country which has signed an investment treaty with the host state. This type of restructuring provides investors with a gateway to international law protection of their rights. The nature of such legal protections is procedural, such as access to an independent and impartial arbitration tribunal, and substantive, such as protection from unlawful expropriation. An investor can directly enforce such rights against the state hosting the investment.

To some, structuring investments to benefit from these protections is completely acceptable and no more than sensible risk management; to others, this form of “treaty shopping” is an abuse of the intricate system of investment protection which has developed in public international law. In a number of investment treaty cases, respondent states have objected to the claim on grounds of investment restructuring. The decisions on corporate restructuring turn on their specific context, both legal and factual. This study breaks them down to draw out key trends. It identifies the legal, factual and regional indicators that ultimately have an impact on whether a challenge on the grounds of corporate structuring is likely to succeed.

Please CLICK HERE to access your copy of this study now.

Author

Edward Poulton is Managing Partner in Baker McKenzie’s London office and a member of the Dispute Resolution team. A key name in the arbitration community, Ed sits as an arbitrator in ICC and LCIA arbitrations, and is the consulting editor of a seminal text on the arbitration of M&A disputes. He also sits on the steering committee for the Firm’s Global International Arbitration Practice Group. Ed is recognised in the fields of international arbitration and public international law by Legal 500 and Chambers & Partners. Ed Poulton can be reached at [email protected] and +44 20 7919 1606.

Author

Katia Finkel is a Senior Associate in the Baker McKenzie Dispute Resolution team based in London. She advises clients on global dispute resolution strategy and settlement negotiation and acts on their behalf in commercial and investment disputes under LCIA, ICC, ICSID and UNCITRAL Arbitration Rules. She acts on behalf of governments and private parties in energy, large construction projects and post M&A disputes, where she has extensive experience. Her practice mainly involves multi-jurisdictional issues and she regularly advises clients on investment structuring and restructuring. Katia completed a nine-month secondment in Shell’s EMENA Litigation Group, working on a number of high-stake disputes. She taught international commercial and investment arbitration at King’s College London for several years and regularly publishes in the field of international arbitration. Katia Finkel can be reached at [email protected] and + 44 20 7919 1756.

Author

Janek Bednarz is an associate in the Baker McKenzie Dispute Resolution team, based in London. Janek has experience acting for parties in a broad range of commercial, construction and investment treaty disputes. Prior to joining Baker McKenzie, Janek was a trainee case manager at the ICC Court of Arbitration.