How to identify insiders and intruders disguising as investors in the assignment of investments

• Main Authors: Ren, Raphael, Shan, Soh Lip
• Format: Article
• Published: CAMBRIDGE UNIV PRESS 2022
• Subjects: JX International law; K Law (General)
• Online Access: http://eprints.um.edu.my/46283/; https://doi.org/10.1017/S0020589322000069

The constant exchange of investment assets poses a risk of `commoditisation' of investment treaty claims. Nevertheless, both traditional and modern investment treaties contain sufficient safeguards against attempts by host State `insiders' and third State `intruders' to create artificial access to arbitration. First, the definition of `investment' can filter genuine investments from bare acquisition of assets (ratione materiae). Second, the textual linkage between `investor' and `investment' strongly implies that `active contribution' in the investment is required from assignees to qualify for protection (ratione personae). Third, the doctrine of abuse of rights prevents treaty shopping and internationalisation of domestic disputes (ratione temporis).