• Design of different contracts and agreements such as joint venture agreement, shareholder agreements, share purchase agreements, etc. Two questions are at the heart of the question of whether claims can be invoked: the use in such claims tends to be high, with large sums. Increasing the availability and demand for third-party funds to meet investor needs is expected to support further growth in IIA requirements. The definition of an investor will vary between IIAs, but it will generally mean either a person who is a national of a state other than the one in which the investment is made and who is a party to the IIA, or a legal person registered in such a state. Legal due diligence in the pre-investment phase is essential. Investors will generally look for ways to structure an investment in a tax-efficient manner; they should also consider the benefits of structuring the investment in order to take advantage of the benefits of applicable IAs. The so-called «Treaty Shopping» is legitimate, although care must be taken to structure the investment in such a way that claims are allowed under the corresponding IIA. A.A. is organized bilaterally, multilaterally and regionally.
More than 2,500 IAs are in force worldwide. Here you will find a searchable database of AI. Investing in another state, called «FDI», usually has a significantly different risk profile than investing in an investor`s domestic market. Foreign direct investment may be exposed to greater risks related to the political, regulatory and economic environment of the State in which the investments are made. Measures taken by the State may affect the investment or even lead to expropriation of an investor`s assets by the State. ICSID`s mission is largely limited to disputes between a State (or a public authority or an enterprise) and nationals of another State resulting from an investment. UNCTAD publishes data on known dispute settlement in investment countries, although many IIA arbitration proceedings are confidential, the data will not collect all such claims. You can find the data here. The use of AIIs to support investment policy continues to create new A.A.
At the same time, IIA arbitration proceedings are on the rise to assert investors` claims against states. There are many intra-EU ESAs that were usually concluded before a Member State`s accession. They are, however, one of the reasons for tensions between the EU institutions, which assert exclusive jurisdiction for investment disputes between Member States and EU-based investors, and arbitration tribunals, which tend not to support this view. IIA disputes generally provide that disputes are settled through international arbitration. The organization most often designated by the IIA to hear and resolve disputes over investment agreements is the International Centre for the Settlement of Investment Disputes (ICSID). One consequence of this is that current IIA applications, which are successful before an arbitral tribunal, may encounter difficulties within the EU during an enforcement phase. For example, the benefits available to investors before EU membership may constitute illegal state aid after accession. In the absence of a contract between an investor`s home country and the intended host country, an investor may purchase an appropriate forum from which to start his investment; The same applies where a contract concluded between the host State and a third country offers, from the investor`s point of view, a more advantageous basis for investment. Investors need to think about how to structure their investment to reap the benefits of IIAs. This issue can be complex in the modern world of multinationals. Particular complexities can arise when the investor is an entity within a multinational.
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