Seats of corporate convenience and international investment law

Abstract

Seats of corporate convenience (SCCs) include tax havens, offshore finance centres and other locations frequently used by transnational corporations to channel their investments around the world. They form some of the important structural elements of the global economy. This thesis examines the role of SCCs in the evolution and growth of investor-state arbitration (ISA). By analysing 463 ISA cases through the lens of SCCs, it highlights how bilateral investment treaties (BITs) came to be used in the context of investments that were not bilateral, being routed via one or more SCCs. The Research Question in this thesis was: If the provision of Investor-State Arbitration (ISA) in Bilateral Investment Treaties (BITs) was intended to promote flows of investments between the signatories to such treaties, how did it come to apply to indirect investments channelled through one or more seats of corporate convenience (SCCs)? There are two aspects to this question, namely: (a) What crucial changes took place in the global economy after the 1950s to enable ISA to be used in the context of indirect investments? (b) What was the input of key actors such as states (particularly, the US and the developing countries), transnational corporations (TNCs), international organisations (IOs), and professionals (mainly, lawyers) in this process? ISA was first proposed in the context of a treaty and an investor-state agreement. The idea was then promoted in the form of a multilateral convention by Shell and a few individuals led by Herman Abs, a banker, and a British attorney general, Lord Shawcross. It did not culminate into a treaty despite the support of the World Bank, the Organisation for Economic Cooperation and Development (OECD) and other international organisations. Germany and Switzerland then used the draft to enter into BITs, not all of which embraced investor-state arbitration. Around the 1950s and the 1960s, foreign investment in a host state tended to be made by a multinational with a clearly defined home state. The usual mode was the setting up of a subsidiary or a branch office. Foreign direct investment (FDI) was associated with an investor’s control and a 10-25% ownership over the investment vehicle. FDI was distinguishable from portfolio investments and debts. It tended to be in the sectors of extraction, production, or manufacturing. The developing countries tended to borrow money for their development objectives. States’ right to regulate investments in their territories was generally accepted albeit that the compensation payable tended to be disputed. Indeed, the OECD countries themselves used this right when necessary. BITs surged in numbers in the 1990s. The oft-cited justification for burgeoning numbers of BITs was that they would help the developing countries to attract FDI, a source of non-debt financing. However, in a globalised and highly financialised economy, the concept of FDI itself transformed to drop its association with control or a minimum ownership. In the context of ISA, it also ceased to be distinguished from loans, portfolio investments, and indeed, from a need to bring in new capital to a host state. The investors’ character was no longer that of a multinational with a clearly defined home state. The major investors were TNCs who can claim allegiance with a home state, if they need to, but whose businesses were increasingly mobile and financialised. BITs clearly contained the expectation that their signatory states would promote and protect investments from one state into the other, for their mutual benefit. Investments, however, tend to be made via SCCs thus rendering the bilateral focus on their promotion inapposite. Each investment can potentially have several investors and home states, even if they may be under the control of one ultimate investor. Expensive jurisdiction battles waged between the investors and states are indicative of the difficulty of applying BITs to the conditions they were not designed for. The mismatch between the design and function of BITs was not aleatory, but was brought about by landmark ISA awards, and it was facilitated by the actions of key actors (both state and non-state), and by the radical changes in the global economy. FDI statistics are, therefore, difficult to correlate to home or host states, and their BITs. The first twenty years of ISA appear to have been based on express agreements for such arbitrations between investors and home states. This would change to the consent to ISA being derived from BITs and investment laws, without the need for an express agreement between investors and states. Application of ISA to the radically transformed actors and situations has come about with the input of states (particularly, the US and the developing countries), TNCs, international organisations (IOs), and professionals (lawyers). There was no urgent demand in the 1980s-90s to protect investors against expropriation (the incidence of which had peaked in the mid-1970s, and declined). There was no reasonable justification for states to have privatised and outsourced their disputes in BITs, particularly commercial disputes. Yet, developing countries signed BITs, perhaps reluctantly due to their debt-vulnerability; the BITs did not clearly indicate how ISA would work, if indeed, the developing countries understood it at the time. The BITs that appear to have been against the developing countries’ interests were probably signed for the potential (not a promise) of increased investments. The US, an SCC, legitimised the use of other SCCs and offshore entities. It promoted and encouraged indirect investments. The US legal framework endorses the use, by the US investors, of BITs negotiated by other states. The US used both its aid programme and its influence in the IMF and the World Bank to promote various measures of deregulation, privatisation, and liberalisation of the developing countries. Various IOs promoted BITs and other liberalisation measures, without a focus on their effect on the developing countries’ ability to service, much less reduce, their overall debt. Their emphasis was on the improvement of the investment climate; the World Bank set up a specialist advisory agency for foreign investment. The Multilateral Investment Guarantee Agency (MIGA) and the United Nations Conference on Trade and Development (UNCTAD) actively encouraged conferences and workshops to bring countries together to draft BITs. IOs’ thus played an important part in encouraging the developing countries to enter into BITs as a tool to attract FDI. No IO appears to have drawn to the attention of the developing countries to the possibility of BITs, without further agreement, leading to potential ISA with any investor who could fulfil their expansive eligibility criteria. The US also created and nurtured the conditions that allowed oligopolistic TNCs to emerge, expand and thrive. This involves allowing TNCs a substantial say in the US policy-making and implementation. TNCs made a big contribution to the US drafting of its model BIT. Some of the corporations had the early movers’ advantage because they had also contributed to the early drafts at the time of the involvement of Abs and Shawcross; that involvement in international norm-making was spearheaded by the International Chamber of Commerce (ICC). The ICC also led the making of the operative norms that make international arbitration a powerful, effective, and largely self-regulating tool. Various lawyers, accountancy and consultancy firms helped in the convergence of practices of TNCs whether it was in relation to stabilisation clauses, tax-arrangements via SCCs, transfer pricing, or the use of offshore special purpose entities. Arbitration lawyers were mainly responsible for expanding the scope of ISA to the point that an express consent to arbitration was no longer the cornerstone of this institution that was founded on party autonomy. States’ authority to regulate the investments in their territories was transferred to private arbitration tribunals in a continuum; the original idea for such a transfer was promoted by the close association of the banker Abs, the British lawyers Shawcross and Lauterpacht, and the Anglo-Dutch TNC, Shell; this was followed by a wider, looser coordination involving the ICC, the United Nations, International Bar Association, the OECD, and so on. The World Bank set up the International Centre for the Settlement of Investment Disputes (ICSID) in 1964, but it was slow off the mark. Another period of close association of a few arbitration lawyers gave it the boost it needed by (a) dispensing with express consent to arbitration, and (b) deriving a consent to arbitration from states’ BITs or investment legislations. A small pool of arbitrators ensured that the early ICSID cases promoted this interpretation. The scope of ISA expanded by treating BITs as, a) open offers of arbitration for all and sundry investments, and b) the last hoops through which the investment had to pass cursorily, even if it did so in a restructuring carried out after its initial entry in the host state. The extensive use of SCCs meant that the ISA-eligible investors were an expanding and moveable class in respect of any investment. With the feedback loops provided by the long-term BITs and persuasive awards, the path-dependent ISA got increasingly away from its original justification, while undermining the political bargains underpinning any bilateral commitment to promote investments from a home state to a host state. This analysis demonstrates the need to re-think the whole concept and the framework of investment protection. The framework needs to be aligned with (a) the realities of the 21st century investments routinely channelled through SCCs, and (b) the balance between states’ and private actors’ powers and interests. Arbitration awards have interpreted BITs to include within the scope of ISA, not just FDI, but also, portfolio investments and loans. This expansion coupled with the effective operative norms for the enforcement of ISA awards, effectively make BITs work as a regime for the enforcement of sovereign debt. BITs also provide an additional tool to enforce investors’ commercial contractual rights. BITs’ role in promoting developmental objectives (e.g. by reducing debt) have been all but abandoned along with any need for investors to negotiate express investor-state arbitration agreements with their host states. BITs were primarily drafted in the days of regulated economies, i.e. pre-1990. It is uncertain, however, whether, and to what extent, they remain relevant within a deregulated, neoliberal and laissez faire environment. The failure to ask this question indicates how significant an advantage the ISA option is to the interests of TNCs, the main beneficiaries of ISA. In carrying out the necessary research, I have conducted library research (primary and secondary sources) and devoted a large part of my research to the content analysis of Bilateral Investment Treaties and 463 Investor-State Arbitration Awards.