Part I Fundamental Issues, Ch.2 Investment, Investor, Nationality, and Shareholders

Subject(s):

Foreign Direct Investment — Shareholding — Control — Host state nationality — Indirect ownership — Nationality of investor — Investment — Investor — BITs (Bilateral Investment Treaties)

This chapter discusses the major issues surrounding the definition of the key terms ‘investment’ and ‘investor’ in international investment law. The main questions in relation to the first term have concerned the breadth of the definition of investment and whether all types of investments—be they direct or indirect, be they enterprise-based or contractually based—should be covered or whether narrower definitions that relate the coverage of the international investment agreements (IIAs) more precisely to cross-border capital movements and to foreign direct investment by enterprises rather than individuals should be covered. Issues concerning the second term focus on ascertainment of nationality. The nationality of both natural and legal persons is left mainly to national law and practice, with international law intervening where this causes uncertainty, as in the case of dual nationality of natural persons, or the host country nationality problem for subsidiaries of multinational enterprises incorporated in the host country.