Définition de l’investisseur

The report examines the legal challenges surrounding the definition of a 'protected investor' in bilateral investment treaties (BITs), focusing on the role of nationality. It highlights how liberal definitions—such as relying solely on the place of incorporation—enable 'treaty shopping,' where investors artificially acquire a nationality to access more favorable legal protections or international arbitration. The author analyzes the distinction between pre-dispute and post-dispute treaty shopping, noting that tribunals generally view the former as legal strategic planning and the latter as an abuse of process. To mitigate these risks, the document recommends that states adopt more restrictive, cumulative criteria for nationality (e.g., combining incorporation with substantial economic activity) and implement 'automatic' denial of benefits clauses.

• Treaty shopping is the practice where investors deliberately seek the protection of a BIT signed between a state of which they are not nationals and the host state of their investment.
• The 'place of incorporation' criterion is often used in BITs because it is easily identifiable, but it facilitates treaty shopping by allowing the creation of 'mailbox companies' with minimal links to the state.
• The 'control' criterion allows tribunals to 'pierce the corporate veil' to identify the true nationality of the capital, but it is often applied only in a way that favors the investor's access to protection.
• Arbitral tribunals generally consider treaty shopping conducted before a dispute arises (pre-dispute) as legal strategic planning.
• Treaty shopping conducted after a dispute has already arisen (post-dispute) is typically viewed by tribunals as an illegal abuse of right or procedure.
• Denial of benefits clauses allow states to refuse treaty advantages to companies that lack substantial economic activity in their state of incorporation or are controlled by third-party nationals.
• Current 'denial of benefits' clauses are often non-automatic and discretionary, which can lead to legal unpredictability and requires states to act prospectively upon an investment's entry.
• To prevent abusive practices, the document recommends that states use cumulative nationality criteria, such as requiring both incorporation and substantial economic activities.

APA

Nikièma, S. H. (2012). Définition de l’investisseur. International Institute for Sustainable Development. https://www.iisd.org/system/files/publications/best_practices_definition_of_investor_fr.pdf

Chicago

Nikièma, Suzy H. Définition de l’investisseur. International Institute for Sustainable Development, 2012. https://www.iisd.org/system/files/publications/best_practices_definition_of_investor_fr.pdf.

Wikipedia

{{cite report |last1=Nikièma |first1=Suzy H. |title=Définition de l’investisseur |publisher=International Institute for Sustainable Development |date=March 2012 |url=https://www.iisd.org/system/files/publications/best_practices_definition_of_investor_fr.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{nikima2012dfinition, author = {Nikièma, Suzy H.}, title = {{Définition de l’investisseur}}, institution = {International Institute for Sustainable Development}, year = {2012}, month = mar, url = {https://www.iisd.org/system/files/publications/best_practices_definition_of_investor_fr.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }