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Q4. “[T]he Tribunal concludes that the commencement of treaty-based investor-State arbitration constitutes an abuse of right (or abuse of process) when an investor has changed its corporate structure to gain the protection of an investment treaty at a point in time where a dispute was foreseeable. A dispute is foreseeable when there is a reasonable prospect that a measure that may give rise to a treaty claim will materialise.”
- Philip Morris Asia Ltd v Commonwealth of Australia (Award on Jurisdiction and Admissibility of 17 December 2015), para. 585.
Critically discuss the practice of treaty-shopping and nationality planning and the existence of any limits on that practice. Does the Award of the Philip Morris Asia Ltd tribunal represent a consolidation of the approach of previous tribunals, or is it a development in international investment law?
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