Définition de l’investisseur

This report by the International Institute for Sustainable Development (IISD) analyzes how the definition of an 'investor' in Bilateral Investment Treaties (BITs) affects the ability of private entities to access international arbitration. It examines the risks of 'treaty shopping'—where investors artificially acquire a nationality to benefit from a more favorable treaty—and evaluates the effectiveness of liberal versus restrictive clauses in BITs. The document provides recommendations for states to better define protected investors to prevent abusive practices and ensure reciprocity.

• 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 where they have invested.
• The 'place of incorporation' criterion for determining corporate nationality is highly susceptible to abuse because it can create an artificial link, such as a 'mailbox company' with only a postal address in the state.
• The Netherlands is frequently used for treaty shopping due to its extensive network of over 105 BITs and its use of the incorporation-only criterion; as of 2006, approximately 20,000 'mailbox companies' were identified there.
• The 'control' criterion allows for the 'piercing of the corporate veil' to identify the true nationality of capital, but it is often applied only in a way that favors the investor's ability to claim a useful nationality.
• Arbitral tribunals generally view 'pre-dispute' treaty shopping (restructuring before a conflict arises) as a legal strategic planning activity, provided the BIT uses a liberal definition of the investor.
• Conversely, 'post-dispute' treaty shopping—restructuring an investment after a conflict has emerged to gain access to international arbitration—is typically rejected by tribunals as an abuse of process or a violation of good faith.
• The 'denial of benefits' clause allows a state to refuse treaty benefits to companies that lack substantial economic activity in their state of incorporation or are controlled by non-parties, though its effectiveness is often limited by its 'non-automatic' or discretionary nature.
• To prevent abusive practices, the report recommends that states use cumulative nationality criteria (e.g., incorporation plus substantial economic activity) and implement 'automatic' denial of benefits clauses.

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} }