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Treaty Shopping in International Investment Law$
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Jorun Baumgartner

Print publication date: 2016

Print ISBN-13: 9780198787112

Published to Oxford Scholarship Online: January 2017

DOI: 10.1093/acprof:oso/9780198787112.001.0001

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The Customary International Law Relative to Changes of Nationality

The Customary International Law Relative to Changes of Nationality

(p.69) 3 The Customary International Law Relative to Changes of Nationality
Treaty Shopping in International Investment Law

Jorun Baumgartner

Oxford University Press

Heralding the legal analysis of the practice of treaty shopping in Part II of the book, Chapter 3 sets out to analyse the (customary) international law of diplomatic protection as relevant for the question of changes of nationality. Investment arbitral tribunals, when having to decide on whether a claim involving treaty shopping is valid or not, are often tasked to determine whether certain leading cases referring to customary international law may be applied in the investment context. Chapter 3 examines the concept of nationality under international law both for natural and legal persons, discusses in depth the implications of the Nottebohm, Barcelona Traction, and Diallo decisions of the International Court of Justice for international investment law, and assesses the relevance of the (customary) continuous nationality requirement for the practice of treaty shopping in international investment law.

Keywords:   Barcelona Traction, continuous nationality requirement, control theory, customary international law, ‘genuine link’ requirement, incorporation theory, nationality, Nottebohm, seat theory, shareholding

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