4 - International Investment Law on the Standing of Shareholders

Summary

This chapter addresses shareholders’ claims for reflective loss in the context of international investment law. It starts by analyzing the treatment of shareholders and shares in international investment agreements and under the ICSID Convention. In this regard, it sets forth the extent to which shares are considered as covered investments and to which shareholders qualify as foreign investors in investment treaty practice, as well as whether shares qualify as investments under article 25 of the ICSID Convention as interpreted by investment tribunals. This chapter also studies the difference between shareholders’ claims for reflective loss and claims brought under article 25(2)(b) of the ICSID Convention, as well as derivative actions in investment arbitration. Finally, this chapter undertakes an exhaustive analysis of investment arbitration cases that have addressed shareholders’ claims for reflective loss and highlights the reasons relied upon by investment tribunals to generally accept such claims.