The decision to invalidate intra-EU BITs in the Achema case has prompted thepossibility of treaty shopping as a workaround. This would allow foreign investorsseeking to rely on a previous intra-EU BIT to circumnavigate the decision througha strategic shift: by establishing subsidiary entities in a non-EU member state thatholds a BIT with another EU member state. Although the use of this practice isnot a fairly new phenomenon, no explicit prohibition prevails over the practice oftreaty shopping. However, the practice is far from a clear-cut strategy, as itdemands the harmonization of numerous intricate factors that together function asa hindrance for the application of treaty shopping. Factors such as the applicationof denial of benefits clauses and the concept of piercing the corporate veil and thetiming of the treaty shopping are all factors that add another layer of complexityand hinderse for the viability of treaty shopping.In spite of these intricacies, select arbitral awards have paved the way for treatyshopping. These verdicts offer a critical roadmap, underlining the pivotal factorsto be judiciously considered. As such, they have established a roadmap for theanalogous application of treaty shopping as an avenue to sidestep the decision inthe Achema decision.
| Identifer | oai:union.ndltd.org:UPSALLA1/oai:DiVA.org:uu-503622 |
| Date | January 2023 |
| Creators | Redea, Brook |
| Publisher | Uppsala universitet, Juridiska institutionen |
| Source Sets | DiVA Archive at Upsalla University |
| Language | English |
| Detected Language | English |
| Type | Student thesis, info:eu-repo/semantics/bachelorThesis, text |
| Format | application/pdf |
| Rights | info:eu-repo/semantics/openAccess |
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