Realist Corporate Nationality in Transnational Investment Law.

Abstract

This thesis addresses the notion of corporate nationality in modern international commerce and international investment disputes. It explores how corporate nationality rules were created and whether corporate structuring and the related practice of investor-state arbitration tribunals have embraced the principles of legal realism. It is argued that the main jurisdictional battleground concerning corporate nationality often arises in the broader context of transboundary business activities and transnational law. Based on these considerations, it is argued that the national identity of multinational corporations can no longer be determined by reference to structural, organizational, and operational features or its organizational structure since these aspects may no longer reflect the true national identity of a multinational organization. The creation of transnational law merged with the tradition of legal realism has influenced the rules and principles applicable to multinational corporations and their corporate nationality. It is established that corporate nationality in international investment only serves a purpose of simplicity and efficiency in making a foreign investment, enforcing contracts, and suing the host-state. However, the characteristics or the classical tests establishing corporate nationality, which existed in the 20th century, no longer correspond to the realities of a modern transnational corporation. It is, therefore, argued that the modern multinational corporation has a unique transnational capacity – adrift, mobile, and detached from national jurisdiction. Its activities are predominantly regulated by transnational law. Investment arbitration practice reflects this realist fluidity. Also, legal realist arbitrators are often enabled to apply such transnational legal principles since they belong to no national legal order and are, therefore, not bound to apply the substantive or choice of law rules of any jurisdiction. The modern principles governing corporate nationality are of such border-transgressing nature that they both undercut and surpass the territorial boundaries upon which various jurisdictional competences have been predicated.