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Nationality Planning and Abuse of Process: A Coherent Framework

2018; Oxford University Press; Volume: 33; Issue: 1 Linguagem: Inglês

10.1093/icsidreview/six020

2049-1999

Duncan Watson, Tom Brebner,

International Arbitration and Investment Law

Prudent investors seek to structure their investments so as to obtain investment treaty protection. But the crucial line between legitimate ‘nationality planning’ and illegitimate restructuring which renders an investment treaty arbitration an abuse of process is a blurry one. In particular, recent Awards have introduced a foreseeability element to the abuse of process analysis, the scope of which remains largely undefined. This article surveys arbitral practice in the area, and proposes potential refinements to the test.