Publication Type

Journal Article

Version

submittedVersion

Publication Date

10-2019

Abstract

The objective of this article is to establish a unified conceptual framework for State-owned enterprises in international investment law. I hope to furnish drafters and negotiators with the tools to define such enterprises in accordance with their policy concerns. The central thesis is that five definitional criteria must be considered: (i) separate legal personality; (ii) extent and form of control; (iii) eligible governmental units; (iv) nature of activity; and (v) purpose of activity. While variations within each criterion can reflect the policy choices of contracting parties, failure to adequately delimit the boundaries of all five will confer discretion on arbitrators to do so.Application of this framework to existing international investment agreements reveals that many bilateral investment treaties are insufficiently precise as to the definition of State-owned enterprises. However, the Trans Pacific Partnership addresses all five criteria, and limits the scope of covered entities to those that are ‘principally engaged in commercial activities’ and have an ‘orientation towards profit making’. China’s strategic initiatives could necessitate a response that would further fragment the international investment regime. Furthermore, interpretive issues remain in relation to the scope of ‘effective influence’ and determining the purpose of investment activity.

Discipline

Business Organizations Law | State and Local Government Law | Taxation-State and Local

Publication

ICSID Review: Foreign Investment Law Journal

Volume

34

Issue

3

First Page

595

Last Page

625

ISSN

0258-3690

Identifier

10.1093/icsidreview/siz011

Publisher

Oxford University Press

Additional URL

http://doi.org/10.1093/icsidreview/siz011

Download

Share

COinS