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Part II Ambit of Protection, 6 Investment

From: International Investment Arbitration: Substantive Principles (2nd Edition)

Campbell McLachlan, Laurence Shore, Matthew Weiniger

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 25 March 2023

Definition of investment — Investment, territorial element — Investment — Shareholding

Chapter 6 explores the central concept of ‘investment’. It first considers the core question of the definition of ‘investment’ under the ICSID Convention and under investment treaties. It then takes up four important issues: (1) the time when an investment is made in relation to the temporal scope of the treaty protections; (2) the extent to which pre-contract investment may obtain treaty protection; (3) the place of an investment; and (4) the role of host State law in defining ‘investment’. It then analyses a set of problems that arise out of indirect investments: the relation between the losses suffered by a subsidiary in the host State and the investor’s investment; the rights of minority shareholders; claims brought by holding companies; corporate restructuring as a means to gain the advantage of investment treaties; the position of ultimate beneficiaries; and the position of portfolio investments.

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