Linking Private and Public International Law: The Example of Determining Corporate Nationality in Germany’s Investment Treaty Network

Abstract

This paper uses the example of how corporate nationality is defined in the investment treaty practice of the Federal Republic of Germany as an example of fruitful interaction between private and public international law. It shows how Germany’s investment treaty practice defines German corporate nationality, how this practice has evolved since 1959, when Germany signed its first bilateral investment treaty, and how it relates to how other fields of German law determine German corporate nationality, respectively the applicability of German corporate law to a company. This includes Germany’s conflicts of law-rules, relevant provisions in its constitution, and the law relating to Germany’s external economic policy, in particular Germany’s foreign investment insurance scheme. The review shows that, until 2008, German corporate nationality was determined consistently by reference to a company’s seat; this practice changed with Germany’s 2008 model investment treaty, which moved, under the influence of European Union law, to the criterion of incorporation.