Shareholders' claims for reflective loss in international investment law / Lukas Vanhonnaeker.

Format:

Book

Author/Creator:

Vanhonnaeker, Lukas, author.

Series:

Cambridge international trade and economic law

Language:

English

Subjects (All):

Investments, Foreign (International law).

Investments, Foreign--Law and legislation.

Investments, Foreign.

Stockholders--Legal status, laws, etc.

Stockholders.

Stocks--Law and legislation.

Stocks.

Physical Description:

xxxvii, 391 pages : illustrations (black and white) ; 24 cm.

Place of Publication:

Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2020.

Summary:

"International investment law is a small part of the international economic law normative universe and whose distinctive characteristics form its constitutive legitimacy. Robert M. Cover once wrote in his famous "Nomos and Narrative" that "[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning".2 Norms cannot be understood if taken out of their context, of their narrative. International investment law norms are a good example: international investment law norms are created in a specific context characterized by highly particularized features that are, arguably, found nowhere else. Taking an investment norm outside of its context would strip away its constitutive legitimacy and render it inapplicable and obsolete in another context and another narrative. In other words, for one to fully grasp the meaning of an international investment norm or practice, one has to understand the context in which it is generated and applied"-- Provided by publisher.

Contents:

Machine generated contents note: 1. Shareholders in International Investment Law

1.1. The Shareholder as a Vector for Change

1.2. The Multinational Corporation's Stakeholders: Diverging Interests at Play in International Investment Law

1.2.1. Diverging Interests among the MNC's Shareholders

1.2.2. Diverging Interests among the MNC's Shareholders and Creditors

2. International Investment Law's Shareholders' Claims for Reflective Loss: A Clash of Policies

2.1. Shareholders' Claims for Reflective Loss and Considerations of Applicable Law

2.2. Shareholders' Claims for Reflective Loss

Clash of Policies: Systemic versus Regime-Specific Policy

2.2.1. The Policy Considerations Weighing against Shareholders' Claims for Reflective Loss

2.2.2. The Policy Consideration Weighing in Favor of Shareholders' Claims for Reflective Loss: The Protection of Shareholders in International Investment Law as a Policy

3. Shareholders' Claims for Reflective Loss in Domestic Regimes, Customary International Law of Diplomatic Protection, and Human Rights Law

3.1. The Strict and Well-Established Approach Adopted by Domestic Regimes with Respect to Shareholders' Claims for Reflective Loss

3.1.1. The General Prohibition of Claims Based on Reflective Loss

3.1.2. Shareholder Derivative Actions in the Domestic Context: The Alternate Route

3.2. The International Court of Justice on the Standing of Shareholders

3.2.1. The International Court of Justice's Case Law and Shareholders: Understanding the General Prohibition of Shareholders' Claims for Reflective Loss and Identifying Its Limits through Its Contextualization

3.2.1.1. Barcelona Traction: The Rule at Customary International Law

3.2.1.2. Elettronica Sicula: Defining the Contours of the Rule

3.2.1.3. Diallo: Affirming the Rule

3.2.2. A Critical Assessment of the International Court of Justice's Case Law Regarding Shareholder Protection under International Law

3.2.3. The Limited Relevance of the International Court of Justice's Case Law Regarding Shareholder Protection under International Investment Law

3.3. The Standing of Shareholders under the European Convention on Human Rights and the Inter-American Convention on Human Rights: Human Rights Courts Navigating Tumultuous Waters

4. International Investment Law on the Standing of Shareholders

4.1. International Investment Agreements on the Standing of Shareholders

4.1.1. Shares as "Investments"

4.1.2. Shareholders as "Investors"

4.2. Investor-State Tribunals on the Standing of Shareholders

4.2.1. The Jurisdiction of ICSID Tribunals

4.2.1.1. Article 25(1) of the ICSID Convention: The General Jurisdictional Requirements

4.2.1.2. Article 25(2)(b) of the ICSID Convention and Corporate Structures

4.2.2. The Case of Derivative Claims on Behalf of the Company: The Alternate Route in the International Investment Law Context

The NAFTA Example

4.3. The Interplay between the ICSID Convention and International Investment Agreements

4.3.1. The Interaction between Article 25(1) of the ICSID Convention and International Investment Agreements

4.3.2. The Interaction between Article 25(2)(b) of the ICSID Convention and International Investment Agreements

4.4. A Critical Analysis of the Broad Acceptance of Shareholders' Claims for Reflective Loss under International Investment Agreements: The Notion of "Investment" as the Key Criteria

4.4.1. The Autonomy of Shareholders' Claims for Reflective Loss: The Recognition of the Separate Cause of Action of Shareholders and of the Consequent Autonomous Nature of Shareholders' Claims for Reflective Loss

4.4.2. The Irrelevance of the Notion of "Control"

4.4.2.1. The Legal Standing of the Majority Shareholder of the Locally Incorporated Corporation

4.4.2.2. The Legal Standing of the Minority Shareholder of the Locally Incorporated Corporation

4.4.2.3. The Legal Standing of Intermediate Corporations and of Indirect Shareholders (Holding Interests through an Intermediate Corporation) of the Locally Incorporated Corporation

5. Legal Uncertainty and Inconsistency Militating against Shareholders' Claims for Reflective Loss: The Unpredictability of Investment Disputes Involving Shareholders

5.1. Shareholders' Claims for Reflective Loss as a Disincentive to Settle the Dispute and Potential Floodgates

5.1.1. Shareholders' Claims for Reflective Loss as a Disincentive to Settle

5.1.2. Shareholders' Claims for Reflective Loss and Potential Opening of the Floodgates

5.2. Treaty Shopping and Forum Shopping

5.2.1. Treaty Shopping as a Phenomenon That Is Not Inherently Illegitimate

5.2.2. Regulating Illegitimate Treaty Shopping through the Concept of Abuse of Process: Treaty Standard or Principle of International Law?

5.2.2.1. Fighting Illegitimate Treaty Shopping on the Basis of the Applicable Treaty

5.2.2.2. Fighting Illegitimate Treaty Shopping on the Basis of the International Law Principle of Abuse of Process

6. Shareholders' Claims for Reflective Loss and the Dangers of Parallel Proceedings

6.1. Judicial Economy and Costs

6.2. Risk of Inconsistencies

6.3. The Risks of Double Recovery and of Interference with the Fair Distribution of the Recovery

6.4. Domestic and International Parallel Proceedings: The Inefficiency of Claim-Limiting Provisions

6.4.1. Exhaustion of Local Remedies

6.4.2. Fork-in-the-Road

6.4.3. Waivers

7. International Res Judicata as a Solution to Parallel Proceedings Arising from Shareholders' Claims for Reflective Loss in International Investment Law

7.1. Domestic Res Judicata: The Blatant Lack of Consistency

7.1.1. The Civil Law Approach

7.1.2. The Common Law Tradition as Illustrated by the US Approach

7.2. International Res Judicata: A Surprising Consistency

7.2.1. Proceedings Conducted before International Courts or Arbitration Tribunals

7.2.2. Identity of the Parties: The Prevalence of the Realistic Attitude

7.2.3. Identity of the Object and of the Cause

7.2.4. International Res Judicata Exemplified: The Apotex Decision

7.3. For a Broader Application and Understanding of International Res Judicata

7.3.1. The Broad Application of International Res Judicata: The Affirmation of a Rule of Customary International Law

7.3.2. The Broad Understanding of International Res Judicata: The Affirmation of a Functional Concept of Res Judicata Inspired by the Common Law Notion of Issue Estoppel

8. The Consolidation of Proceedings and Mass Claims in International Investment Law and Arbitration

8.1. The Consolidation of Proceedings in International Investment Law and Arbitration

8.1.1. The Feasibility of Consolidation in Investment Treaty Arbitration

8.1.1.1. Consolidation under International Investment Agreements

8.1.1.2. Conditions for Consolidation in International Investment Arbitration

8.1.2. The Desirability of Consolidation in Investment Treaty Arbitration with Respect to Shareholders' Claims for Reflective Loss

8.1.2.1. The Efficiency of Consolidation and Shareholders' Claims for Reflective Loss

8.1.2.2. Avoiding Inconsistent and Contradictory Awards

8.1.3. The Dangers of Consolidation Alleviated

8.1.3.1. The Parties' Consent

8.1.3.2. Procedural Issues, Due Process, and Confidentiality

8.1.3.3. The Apportionment of the Costs of Arbitration and Enforcement Considerations

8.2. Mass Claims in International Investment Law and Arbitration

8.2.1. Mass Claims in International Investment Arbitration

8.2.2. Difficulties Arising from Mass Claims and Shareholders' Claims for Reflective Loss

8.2.2.1. A Jurisdictional Issue Based on the Lack of Consent

8.2.2.2. An Admissibility Issue Based on the Procedural Aspects of Multiparty Proceedings and Due Process

8.3. The Law Applicable to the Merits in Mass Claims and Consolidated Proceedings: Toward Greater Consistency

9. Calculating Damages in Shareholders' Claims for Reflective Loss

9.1. Calculating Damages in Consolidated Proceedings and Mass Claims Involving Numerous Claimants

9.1.1. The Protected Investment: The Underlying Business Unit or the Share(s)?

9.1.2. Flow-Through of Damage in the Practice of Investment Tribunals

9.2. Enhanced Cooperation

among Courts and Tribunals to Avoid Double Recovery

9.3. Creative Remedies to Avoid Double Recovery: The Share Purchase Option.

Notes:

Includes bibliographical references and index.

Other Format:

Online version: Vanhonnaeker, Lukas, 1989- Shareholders' claims for reflective loss in international investment law

ISBN:

9781108489430

1108489435

OCLC:

1112426906