The Significance of the Notion of Dispute and Its Foreseeability in an Investment Claim Involving a Corporate Restructuring

Abstract

Corporate restructuring is a practice arbitral tribunals have been increasingly confronted with in recent years. In their attempt to draw a line between ‘legitimate nationality planning’ and ‘abusive treaty shopping’, arbitral tribunals have over the years developed a line of jurisprudence that focuses on the timing of the corporate restructuring: rejecting jurisdiction ratione temporis if a dispute already existed at the time of the restructuring, respectively finding the claim inadmissible on grounds of abuse of rights/abuse of process if the dispute was foreseeable. Thus, the question invariably arises when a dispute has come into being respectively when it is foreseeable. However, arbitral tribunals have applied existing international jurisprudence on the notion of dispute only inconsistently. The present article critically analyses the application of the ‘pre-existing/foreseeable dispute’ jurisprudence in the recent Philip Morris v Australia award and other restructuring arbitral decisions.