Piercing the‘National’Veil of State-Backed Investors in ICSID Arbitration: Beyond Broches Test and ARSIWA

Amidst the rising influence of State-owned enterprises and sovereign wealth funds, the eligibility of State-backed investors to claim standing as a claimant before an ICSID tribunal emerges as a significant point of contention. The established‘Broches test’suggests that State-ownership per se does not disqualify an entity from being a ‘national’ under Article 25 of the ICSID Convention. However, the ambiguities inherent in its content and legal authority have yielded varied interpretations. A newer perspective suggests relying on attribution standards reflected in the Articles on Responsibility of States for Internationally Wrongful Act (ARSIWA) for guidance. This article examines critically these prevalent approaches and obstacles to the transplantation of ARSIWA’s attribution rules to this specific context. Instead, it proposes a method for piercing the ‘national’ veil of State-backed investors in accordance with the general principle of law of abuse of legal personality and process. This proposed framework strikes a proper balance between safeguarding the integrity of the ICSID system and ensuring State-backed investors’ access to ICSID. Moreover, this article paves the way for future tribunals by drawing inspiration from the parallel practice of the European Court of Human Rights.