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Baumgartner, Jorun --- "Investor nationality and the definition of investment: policy options to limit the practice of ‘treaty shopping’" [2018] ELECD 1622; in Chaisse, Julien (ed), "China-European Union Investment Relationships" (Edward Elgar Publishing, 2018) 131

Book Title: China-European Union Investment Relationships

Editor(s): Chaisse, Julien

Publisher: Edward Elgar Publishing

ISBN: 9781788971898

Section: Chapter 8

Section Title: Investor nationality and the definition of investment: policy options to limit the practice of ‘treaty shopping’

Author(s): Baumgartner, Jorun

Number of pages: 25

Abstract/Description:

This chapter assesses States’ policy options to limit the practice of treaty shopping in new IIAs, focusing on the definitions of investor and investment. To this end, after defining the relevant scenarios of treaty shopping, exploring the reasons for its occurrence and explaining the relevance of refined investor and investment definitions in a prospective China-EU BIT, this contribution will address the legal issues arising with respect to the investor and investment definitions, discuss relevant arbitral practice and examine EU and Chinese IIA practice in this regard. It will show that careful treaty drafting, containing a higher degree of clarity as to the key definitions, can go a long way toward ensuring that only those investors and investments contemplated by the negotiating parties will benefit from treaty protection.