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Foreign State Immunity and Foreign Government Controlled Investors

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  • David Gaukrodger

    (OECD)

Abstract

Discussions at the “Freedom of Investment” Roundtables, hosted by the OECD Investment Committee, have stressed that increased investments by foreign State-controlled investors can bring significant benefits to home and host societies, but have also noted that they can raise concerns. This paper examines two principal issues concerning foreign State-controlled investors: whether the doctrine of foreign state immunity may make it difficult for private parties to pursue legitimate claims against them and whether that doctrine creates regulatory enforcement gaps for host countries. Although the restrictive approach to immunity is now widely recognised, important issues, such as whether the financial investment activities of a sovereign wealth fund are commercial or sovereign acts, remain uncertain. In the area of regulation, the paper analyses state policies in the area of tax, competition law and criminal law, and notes key factors that may influence immunity in such cases.

Suggested Citation

  • David Gaukrodger, 2010. "Foreign State Immunity and Foreign Government Controlled Investors," OECD Working Papers on International Investment 2010/2, OECD Publishing.
  • Handle: RePEc:oec:dafaaa:2010/2-en
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    File URL: http://dx.doi.org/10.1787/5km91p0ksqs7-en
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    Keywords

    antitrust; central banks; competition law; foreign government controlled investors; foreign sovereign immunity; foreign state immunity; international investment law; regulation; sovereign wealth funds; state immunity; state-controlled investors; state-owned enterprises; taxation;

    JEL classification:

    • F21 - International Economics - - International Factor Movements and International Business - - - International Investment; Long-Term Capital Movements
    • F23 - International Economics - - International Factor Movements and International Business - - - Multinational Firms; International Business
    • G28 - Financial Economics - - Financial Institutions and Services - - - Government Policy and Regulation
    • H82 - Public Economics - - Miscellaneous Issues - - - Governmental Property
    • K21 - Law and Economics - - Regulation and Business Law - - - Antitrust Law
    • K33 - Law and Economics - - Other Substantive Areas of Law - - - International Law
    • K34 - Law and Economics - - Other Substantive Areas of Law - - - Tax Law

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