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Good Faith and International Economic Law$
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Andrew D. Mitchell, M Sornarajah, and Tania Voon

Print publication date: 2015

Print ISBN-13: 9780198739791

Published to Oxford Scholarship Online: June 2015

DOI: 10.1093/acprof:oso/9780198739791.001.0001

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Good Faith Limitations on Protected Investments and Corporate Structuring

Good Faith Limitations on Protected Investments and Corporate Structuring

Chapter:
(p.88) 5 Good Faith Limitations on Protected Investments and Corporate Structuring
Source:
Good Faith and International Economic Law
Author(s):

Stephan W Schill

Heather L Bray

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198739791.003.0005

On numerous occasions, investment treaty tribunals have relied—and in some cases refused to rely—on the principle of good faith to ensure that only bona fide investments and investors are protected under the relevant investment treaty. This chapter reviews the jurisprudence on illegal investments and corporate structuring and attempts to expose the purpose of the principle of good faith within this context. This chapter questions whether tribunals should rely on this principle to restrict the definition of investor and investment or whether the plain meaning of treaty provisions should prevail. Although there may be a small role for the principle of good faith in investment treaty arbitration, particularly where domestic regulation falls short of international standards, an expansive application of the principle should be rejected. Instead, tribunals should focus on treaty language and respect domestic regulation in determining what investments and corporate structures the host state wishes to protect.

Keywords:   arbitration, abuse of process, corporate structuring, good faith, investment, host state law, legality, nationality planning, public policy

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