Document Type

Article

Comments

William T. Ketcham, Jr. Prize Paper. (M. Reisman, L. Brilmayer, A. Stone Sweet) (Best paper in the field of private international law to be awarded annually)

Abstract

This Article addresses a controversial issue within a controversial field: nationalities of convenience and access to Investor-State Dispute-Settlement (ISDS).[1] Nationality has always played an important role in International Law. Ascriptions of nationality allow states to allocate control over a scarce and valuable resource: people.[2] Today, nationality is the main metric of group association;[3] replacing other conceptions of kinship drawn along ethnic, tribal or religious lines.[4] In the field of international adjudication, one of the main functions of nationality is to regulate the personal jurisdiction of international courts or tribunals. Thus, in some cases, holding a certain nationality is a requisite to access international justice.[5]Given that, the main question this Article will analyze is whether nationalities of convenience are valid in both international law generally, and international investment law specifically

[1] Investor State arbitration—and arbitration in general—has been the subject of a heated debate, particularly in the context of the inclusion of ISDS in multilateral trade agreements like the Transatlantic Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TTP). See: Elizabeth Warren, The Trans-Pacific Partnership Clause Everyone Should Oppose, Wash. Post, Feb. 25, 2015, where the Senator states that: “Agreeing to ISDS in this enormous new treaty would tilt the playing field in the United States further in favor of big multinational corporations. Worse, it would undermine U.S. sovereignty. ISDS would allow foreign companies to challenge U.S. laws — and potentially to pick up huge payouts from taxpayers — without ever stepping foot in a U.S. court.” On a similar note, see the open letter to congressional leaders written by Joseph Stiglitz, Judith Resnki, Laurence Tribe et al., Wash. Post, Apr. 30, 2015, stating that: “ISDS weakens the rule of law by removing the procedural protections of the legal system and using a system of adjudication with limited accountability and review. It is antithetical to the fair, public, and effective legal system that all Americans expect and deserve.” In the context of domestic arbitration—admittedly, a substantially different institution—opposition has also grown. For a report that gained considerable media attention, see: Jessica Silver-Greenberg and Michael Corkery, In Arbitration, a Privatization of the Justice System, N.Y. Times, Nov. 1, 2015.

[2] W. M. Reisman et al, International Law in Contemporary Perspective, 357 (2 edition ed. 2004).

[3] See generally: Peter J. Spiro, A New International Law of Citizenship, 105 Am. J. Int’l L. 694–746 (2011).

[4] Siegfried Wiessner, Blessed Be the Ties That Bind: The Nexus between Nationality and Territory, 56 Miss. L.J. 447, 447-449 (1986); Paul Weis, Nationality and Statelessness in International Law, 31-32, (1956) and Helen Silving, Nationality in Comparative Law, 5 Am. J. Comp. L, 410, 410 (1956). Robert Sloane, Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality, 50 Harv. Int’l L.J., p. 1 (2009), p. 1, 1-60.

[5] As will be discussed below [include cross-reference], nationality was originally a prerequisite that would enable a State to exercise diplomatic protection. This was based on the nationality of claims principle, also called the Vatellian fiction, as developed by the Permanent Court of International Justice in: Mavrommatis Palestine Concessions (U.K. v. Greece), 1924 P.C.I.J. (ser. A) No. 2, at 11 (Aug. 30): “It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights — its right to ensure, in the person of its subjects, respect for the rules of international law.”

Date of Authorship for this Version

2015

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