Investments often take the form of a participation in a legal entity established in the host State. While the ICJ’s Barcelona Traction judgment, despite criticism1, still stands for the position that shareholders can bring claims only in respect of their, often limited, direct rights with respect to corporate matters under customary international law, shareholding as such is a protected investment under many investment treaties.2 Shareholders as investors are therefore entitled to advance their own claims in treaty-based investment arbitrations. Investment tribunals have regularly allowed shareholder claims both in relation to the shareholder’s direct rights (such as for seizure of shares) and for reflective loss claims (claims for loss in share value due to injuries to the local entity).
II. Shareholder rights under customary international law
Under customary international law3 as reflected in the Barcelona Traction4 and the Diallo judgments5, a State can endorse the claims of a shareholder having its nationality only in respect of the shareholder’s own direct rights.6 Such rights can encompass, e.g., the right to take part and vote in shareholder meetings, to receive dividends, to appoint management and to monitor corporate governance.7 Their existence and scope are determined by the law governing the legal entity.8 Generally, however, shareholding does not create a right to the property of the company or legal entity.9 The ICJ emphasises the distinction between the shareholder’s and the company’s property, even where there is only one shareholder.10 This is in line with the position under many domestic systems of corporate law where shareholders are only entitled to bring direct claims while reflective loss claims are barred.
III. Shareholder rights under investment treaties
Investment tribunals have consistently accepted direct shareholder claims11 in reliance on the applicable investment treaty12 and in particular the definition of shareholding as investment.13 A number of tribunals have specifically distinguished the Barcelona Traction case as pertaining to diplomatic protection.14 Also corporations may be protected shareholders, given that juridical persons qualify as investors under presumably all investment treaties. Arbitral jurisprudence further does not differentiate between majority and minority shareholding.15 Minority and majority shareholders can even “submit their own distinct claims in connection with the same events.”16 A differentiation is likewise not made between direct – immediate – shareholding and indirect shareholding.17 Many treaties expressly cover indirect investments,18 but tribunals have generally also not taken issue with indirect shareholdings absent such an express qualification.19 Distinct questions arise, however, where the local subsidiary itself initiates legal proceedings,20 which it is considered to be entitled to independently from the shareholders’ actions,21 or the shareholder seeks to bring a claim on behalf the local subsidiary (see indirect shareholder claims).
B. The extent of the claim
The extent of the direct claim that a shareholder can bring is not equally straightforward.22 It depends on the applicable treaty’s specific wording23 and the relevant facts of each case. As a result, a small number of tribunals has viewed the shareholder’s protection under the relevant applicable BIT, much as under customary international law, as limited to instances where the host State interferes with the shareholder’s direct rights.24 However, many tribunals have generally accepted that a shareholder is entitled to the reflective losses corresponding to the depreciation in value of the shareholding where the domestic entity was harmed.25 Finally, tribunals have taken diverging positions as to whether or not shareholders can pursue claims directly with respect to assets of the local entity in which the shares are held. Some tribunals held that shareholder are equally only entitled to claim for reflective losses resulting from an interference with the assets or contracts of the entity in which they own shares.26 Other tribunals have recognized that shareholders could also file claims in relation to the local entity’s assets or property.27
C. Potential for overlapping proceedings
The possibility for shareholders to initiate arbitral proceedings in their own right means that multiple sets of proceedings relating to the same measure could be initiated by different shareholders as well as the domestic company itself.28 In this respect, e.g. Articles 1116 and 1117 NAFTA draw a distinction between claims that are brought by an investor on its own behalf or on behalf of a local entity. While NAFTA establishes different mechanisms depending on the type of claim (including consolidation of proceedings under Article 1117 (3) NAFTA), this is not the case under the majority of today’s investment treaties.
Alexandrov, S.A., The "Baby Boom" of Treaty-Based Arbitrations and the Jurisdiction of ICSID Tribunals – Shareholders as "Investors" under Investment Treaties, The Journal of World Investment and Trade, 2005.
Clodfelter, M.A., and Klingler, J.D., Reflective Loss and its Limits under International Investment Law, in Beharry, C.L. (ed.), Contemporary and Emerging Issues on the Law of Damages and Valuation in International Investment Arbitration.
Cohen Smutny, A., Claims of Shareholders in International Investment Law, in Binder, B., and Others (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer, 2009.
Kaufmann-Kohler, G., Multiple proceedings – New Challenges for the Settlement of Investment Disputes, in Rovine, A.W. (ed.), Contemporary Issues in International Arbitration and Mediation - The Fordham Papers 2013, 2014.
Laird, I.A., A Community of Destiny – The Barcelona Traction Case and the Development of Shareholder Rights to Bring Investment Claims, in Weiler, T. (ed.), International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law, 2005.
Orrego Vicuña, F., The Protection of Shareholders under International Law: Making State Responsibility More Accessible, in Ragazzi, M. (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter, 2005.
Schreuer, Ch., Shareholder Protection in International Investment Law, in Dupuy, P.-M., and Others (eds.), Common Values in International Law – Essays in Honour of Christian Tomuschat, 2006.
Vanhonnaeker, L., Shareholders' Claims for Reflective Loss in International Investment Law, 2020.
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