Journal of Arbitration Studies (한국중재학회지:중재연구)

The Korean Association of Arbitration Studies (한국중재학회)
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State-Owned enterprises as ICSID claimants and establishment of jurisdiction: The Decision on Jurisdiction in BUCG v. Yemen

공기업의 ICSID 중재 신청과 관할권 성립: BUCG v. Yemen 사건을 중심으로

  • 장석영 (고려대학교 법학연구원, 고려대학교(국제법 전공))
  • Received : 2018.02.02
  • Accepted : 2018.02.27
  • Published : 2018.03.02
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Abstract

Due to the increasing number of foreign investments made by state-owned enterprises, there has been a growth in the number of investment arbitration claims submitted by them. However, international investment treaties including the ICSID Convention are intended to apply to investor-state disputes and according to Article 25 of the ICSID Convention, the claimant has to be "a national of another Contracting State." This raises the question of whether state-owned companies can be considered as "nationals of another Contracting State" or private investors. This issue has been discussed in the ICSID Decision on Jurisdiction in BUCG v. Yemen which has been released in 2017. Since there would be more claims related to the standing of state-owned enterprises as claimants, it is required to understand whether state-owned enterprises could be permitted access to the ICSID under the ICSID Convention Article 25. Moreover, the ICSID cases addressing the jurisdictional issues including BUCG v. Yemen has to be closely analyzed. In particular, as the Broches test was applied in order to decide the standing of state-owned companies, it is necessary to examine how the Broches criteria has been interpreted and adopted in the ICSID cases.

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References

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