Investment Treaties and Shareholder Claims: Analysis of Treaty Practice

David Gaukrodgeri iOECD

Organisation for Economic Co-operation and Development

关键词: investor-state dispute settlement;    foreign investment;    derivative action;    separate legal personality;    reflective loss;    investment treaties;    stockholders;    consistency of arbitral decisions;    access to justice;    shareholder claims;    international economic law;   

DOI  :  https://doi.org/10.1787/5jxvk6shpvs4-en

学科分类：社会科学、人文和艺术（综合）

来源: OECD iLibrary

【 摘 要 】

Advanced systems of domestic corporate law generally apply a “no reflective loss” principle to shareholder claims. Shareholder claims are permitted for direct injury to shareholder rights (such as voting rights). But shareholders generally cannot bring claims for reflective loss incurred as a result of injury to "their" company (such as loss in value of shares). Only the directly-injured company can claim.In contrast, shareholder claims for reflective loss have consistently been permitted under typical bilateral investment treaties (BITs) in recent years. This paper analyses investment treaty provisions relating to shareholder claims. It addresses (i) treaty regimes for shareholder recovery and company recovery of damages, including their consequences for investor protection and government liability; (ii) the interaction of reflective loss claims with treaty provisions that seek to limit multiple claims; and (iii) treaty provisions applicable to government objections to shareholder claims for reflective loss.