It gives me great pleasure to pass along the notice of the distribution of a useful new Report authored by members of the British Institute of International and Comparative Law (BIICL) and Withers LLP (Hussein Haeri, Yarik Kryvoi, Camila Gambarini, and Robert Kovacs): Sovereign Wealth Funds: Transnational Regulation and Dispute Resolution (2021). As set out in its introduction:
The Report focuses on the transnational dimension of SWFs. It reviews different approaches to defining SWFs, their origins and cross-border operations. The Report explores transnational dispute resolution involving SWFs before both national courts and international courts and tribunals and discusses strategic legal issues such as the fora in which disputes involving SWFs are settled, the subject matter of disputes involving SWFs and a host of related jurisdictional and merits issues.
The Report further considers regulatory and other issues related to the position
of SWFs in a changing world with sections dealing with questions related to the screening of SWF investments, sanctions affecting the operations of SWFs and the impact of business and human rights on SWF’s operations. The Report further brings together institutional definitions of SWFs, lists the largest SWFs and examines their corporate structures. Finally, it provides detailed summaries of cases involving SWFs from key jurisdictions. (P. 5).
The Executive Summary and "Methodology" sections follows (pp. 7-9). The report may be accessed HERE.
As the presence of SWFs in the global economy grows so does their involvement in international disputes. SWFs involved in commercial activities present a particular set of challenges for regulators, adjudicators and legal practitioners. Although corporate structuring of SWFs differs, international courts and tribunals often tend to apply similar sets of public international law principles to determine the issues of their standing in investor-State disputes or attribution of their activities to their home States, as well as the possibility of claims being raised on their behalf by their home State.
Domestic law plays a key role when it comes to questions of admission of
SWFs as foreign investors, issues of
foreign sovereign immunity, sanctions
or issues of responsible investment or of business and human rights.
However, increasingly States coordinate
their approaches to the regulation of
SWFs. As at today, the 2008 Santiago
Principles remains the main instrument
of self-regulation of SWFs. As stated
in the ‘Object and Purpose’ section of the Santiago Principles, the Santiago Principles’ aim is:
...to identify a framework of generally accepted principles and practicesthat properly reflect appropriate governance and accountability arrangements as well as the conduct of investment practices by SWFs on a prudent and sound basis.15
The increased significance and cross border activities of SWFs have contributed to the adoption of new forms of regulation including national legislation on investment screening and sanctions at the UN, EU and domestic level – such as the Foreign Investment and National Security Act of 2007in the US – as well as instruments promoting responsible investment, human rights and the environment. In many areas, the regulation of SWFs is still underdeveloped, a prominent example being IIAs. Most IIAs lack clear provisions on the protection of SWFs. Only a relatively small number of new generation IIAs contain express provisions on SWFs, which differ from one treaty to another.
As their importance and value have grown, so have the number of questions surrounding SWFs in relation to their investment strategy, their independence, and their relationship with methods of dispute resolution. The lack of formal regulation presents one of the foremost challenges.
7 Executive summary
There is a recent surge in scrutiny which has resulted in a body of scholarship starting from 2009 onwards. However, jurisprudence in this field is still at an early stage and many cases remain confidential.
The limited publicly available case law of domestic courtsand commercial arbitral tribunals shows that SWFs recur to commercial dispute resolution as any other economic actors. However, some disputes relate to the inherent characteristics of SWFs such as their real or perceived ambivalent private and public nature. That includes the issue of corporate structuring, the relationship between SWFs and their home States and sovereign immunity. Similar questions may arise in the context of the WTO and other forms of public international law dispute resolution, thereby creating a need to have a specialised understanding of the nature and functioning of SWFs.
SWFs may be involved in various capacities in dispute
resolution. They may initiate proceedings by themselves
or request their home State to initiate proceedings on their behalf. Their actions or inactions may also be a basis for an action against them or against the State to which they belong or have a direct or indirect nexus.
Only a few reported cases involve SWFs as claimants against host States. Possibly, SWFs may prefer to rely on diplomacy, further emphasising the dual nature of SWFs and the complexity they bring to the analysis of existing dispute resolution practices.
In the available investor-State cases key issues which the tribunals tackle include corporate structuring and the
relationship between SWFs and their home States. The
question often arises as to whether a SWF as a state-owned
entity can commence arbitration proceedings against a
host State. According to the prevailing view, the investment guarantee provisions of IIAs usually cover SWFs unless they contain explicit carve-outs for SWFs or State-owned entities. Investor-State tribunals may focus on whether the activities of SWFs have a commercial or governmental nature. The protections for SWFs in the FDI admission process (such as investment screening) are relatively limited and depend on the language of each specific treaty.
SWFs might play (and have played) a role in investor-State arbitration also on the opposite side, namely as organs or instrumentalities of the host State. In that case, the investor would have to show that the conduct of the SWF in question is ‘attributable’ to the host State according to the rules of international responsibility under international law.
A SWF-related litigation may also arise under one of the WTO Agreements. These proceedings may involve proceedings initiated by a State to protect the interests of its SWF,
regarding a measure that may affect their interests, such as under the TRIMs or TRIPs. Additionally, measures taken by a State to prefer its own SWF may form a basis of proceedings by another State. There may be other situations of market access or non-tariff barriers or a challenged based under other WTO agreements. These situations can exist generally for any entity, but they are particularly important due to a present or perceived connection between the State and SWFs.
Whether an SWF can rely on sovereign immunity to resist jurisdiction of courts or tribunals or enforcement attempts depends on the law under which proceedings are brought. It also depends on the extent of the SWFs autonomy from the State in its corporate governance structure and the law of the jurisdiction where such proceedings are commenced. If a SWF benefits from State immunity, this may create a jurisdictional obstacle to bringing claims against the SWF or an obstacle in enforcing a court judgment or arbitral award against it.
The determination of SWF activities as commercial often
plays a decisive role in any given case and would usually turn
on the ‘commercial activity’ exception contained in particular
domestic laws. A uniform practice regarding the application
of these doctrines to SWFs has not crystallised yet and differs from one jurisdiction to another. On the other hand, the subject of State immunity is not a pure question of domestic law: it also falls under the purview of customary international law. There appears to be some support for the proposition that a ‘commercial exception’ to State immunity is recognised on the international plane (although the precise contours thereof may not be uncontroversial).16
States hosting SWF investments can view the economic power and influence of SWFs with suspicion, as evidenced by legislation on foreign investment screening and national security laws. New types of disputes involving SWFs and investment screening decisions might arise in the future, and this might prompt SWFs to resort to the available domestic and international dispute settlement tools, including domestic litigation, commercial arbitration or investor-State arbitration.
8 Executive summary
This Report resulted from over 17 months of legal and factual research that BIICL and Withers have carried out together.
This Report adopts a comparative, analytical and doctrinal approach. It discusses and compares a broad array of primary sources including statues, international treaties and ‘soft law’ instruments, as well as publicly available decisions, judgments and awards from national courts of key jurisdictions, commercial and investment arbitral tribunals and other international adjudicatory bodies.
This Report also examines studies and papers published by international institutions and scholars devoted to SWFs.
The views expressed in this Report do not necessarily correspond to the views of the authors, their affiliated institutions or clients.