Defining A State-Owned Enterprise In International Investment Agreements

However, comments on the ILC`s draft articles state that the SOE must either act as a state to bring a state into accountability or that the state must have “effective control” over acts deemed illegal at the international level. Moreover, the imputation diverts attention from the fundamental principle that a company unquestionably performs commercial functions in the context of an investment, and that an SOEs action should not affect its investor status. If it were argued that the SOE was acting bad intentions on instruction and under state control, the argument might be better reserved for the definition of its activities than investments – an unequivocal question. It may be useful to seek an answer in the rules of attribution to the state of the behavior of non-governmental organizations, including SO And and other private actors, in order to distinguish commercial activity from state activity. Indeed, the Pin test is a “reflection”[8] of the test on the attribution of responsibility to states under international law, in particular Articles 5 and 8 of the draft article on the responsibility of States for illegal international acts (the draft ILC treaty). Subject to legal restrictions, state-owned enterprises can be implemented at any level of the state apparatus, from the central or federal government to regions, provinces or municipalities. In the case of corporate governance, the state may retain management powers or only hold a certain number of shares or shares. Most SOEs are limited liability companies and, second, limited liability companies.2 Some companies organize themselves as conglomerates with subsidiaries and associated companies in different countries, others hold a small size and a marginal share in a domestic market. Whatever their shape and size, their raison d`être should be an economic activity of public interest. In the case of ICSID, for example, a state can never be considered a “national of another contracting state” under Article 25, paragraph 1 or 2, point b), the ICSID convention, and the jurisdiction should never be granted to a complaining state10 To assert the capacity (state or not) in which a public enterprise operates , Broches argues: “In today`s world, the classic distinction between private and public investment is the classic distinction between private and public investment that is based on the source of capital, no longer makes sense, if not outdated.