The Significance of the Notion of Dispute and Its Foreseeability in an Investment Claim Involving a Corporate Restructuring
In: The Journal of World Investment & TradeSearch for other papers by Jorun Baumgartner in
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Corporate restructuring is a practice arbitral tribunals have been increasingly confronted with in recent years. In their attempt to draw a line between ‘legitimate nationality planning’ and ‘abusive treaty shopping’, arbitral tribunals have over the years developed a line of jurisprudence that focuses on the timing of the corporate restructuring: rejecting jurisdiction ratione temporis if a dispute already existed at the time of the restructuring, respectively finding the claim inadmissible on grounds of abuse of rights/abuse of process if the dispute was foreseeable. Thus, the question invariably arises when a dispute has come into being respectively when it is foreseeable. However, arbitral tribunals have applied existing international jurisprudence on the notion of dispute only inconsistently. The present article critically analyses the application of the ‘pre-existing/foreseeable dispute’ jurisprudence in the recent Philip Morris v Australia award and other restructuring arbitral decisions.
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Draft EU-Singapore Free Trade Agreement (2014) ch 9 <http://trade.ec.europa.eu/doclib/docs/2014/october/tradoc_152844.pdf> accessed 23 July 2016.
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The Significance of the Notion of Dispute and Its Foreseeability in an Investment Claim Involving a Corporate Restructuring
In: The Journal of World Investment & TradeSearch for other papers by Jorun Baumgartner in
Current site
Google Scholar
PubMed
Corporate restructuring is a practice arbitral tribunals have been increasingly confronted with in recent years. In their attempt to draw a line between ‘legitimate nationality planning’ and ‘abusive treaty shopping’, arbitral tribunals have over the years developed a line of jurisprudence that focuses on the timing of the corporate restructuring: rejecting jurisdiction ratione temporis if a dispute already existed at the time of the restructuring, respectively finding the claim inadmissible on grounds of abuse of rights/abuse of process if the dispute was foreseeable. Thus, the question invariably arises when a dispute has come into being respectively when it is foreseeable. However, arbitral tribunals have applied existing international jurisprudence on the notion of dispute only inconsistently. The present article critically analyses the application of the ‘pre-existing/foreseeable dispute’ jurisprudence in the recent Philip Morris v Australia award and other restructuring arbitral decisions.
| All Time | Past 365 days | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 769 | 57 | 4 |
| Full Text Views | 490 | 9 | 0 |
| PDF Views & Downloads | 465 | 30 | 0 |