Journal of International Arbitration
Volume 34, Issue 2 (2017) pp. 149 – 168

https://doi.org/10.54648/joia2017010

Abstract

Many investment treaties require foreign investments to be made or owned ‘in accordance with’ or ‘in conformity with’ the laws of the host State. Some treaties incorporate this ‘legality requirement’ in the definition of investment, whereas in other treaties it can be found in substantive provisions on investor protection. This article explores three specific issues with respect to the legality requirement in investment arbitration: what is the source of the legality requirement, what is its scope, and is legality a jurisdictional or a merits issue? The article provides an overview of the answers that arbitral tribunals have given based on a selection of awards.

Extract

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