2 - International Investment Law’s Shareholders’ Claims for Reflective Loss: A Clash of Policies

Summary

This chapter identifies the nature of shareholders’ claims for reflective loss, which entails addressing considerations of applicable law as well as the “clash of polices” undergirding them. This chapter starts by refuting the argument according to which the scope of shareholders’ rights in international investment law is defined by domestic law because the notion of “share” in international investment treaties must be understood by reference to municipal law. Contrary to this argument, this chapter explains that the notion of “share” as provided in international investment agreements must be interpreted in accordance with principles of interpretation of international law and must be understood in the specific context of international investment law that shares a different narrative than domestic law. This chapter further clarifies the nature of shareholders’ claims for reflective loss, which are direct claims brought by shareholders for their own and personal loss caused indirectly to their own investment (shares), and they do so by virtue of their own rights conferred upon them by the applicable investment agreement. This chapter then summarizes the main policy considerations that weigh against and in favor of shareholders’ claims for reflective loss in the specific context of international investment law.