Reflective losses are indirect losses, such as a decrease in the value of the shares, suffered by shareholders as a result of harm to the company in which their shares are held.[1] Reflective losses differ from direct losses suffered by shareholders, which may occur through the seizure of shares or barriers to shareholder attendance of company general meetings.[2]
Reflective losses are widely accepted as non-recoverable under domestic corporate law,[3] which stresses the distinction between the company and its shareholders.[4] For example, in the 1982 case, Prudential Assurance v Newman Industries (No 2), which established the “No Reflective Loss Principle” in England, the English Court of Appeals explained that a shareholder has no right to bring reflective loss claims because his shares are simply a right of participation in the company, which is unaffected when the company suffers damage:
But what [the shareholder] cannot do is to recover damages merely because the company in which he is interested has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in dividend, because such a “loss” is merely a reflection of the loss suffered by the company. The shareholder does not suffer any personal loss. His only “loss” is through the company, in the diminution in the value of the net assets of the company, in which he has (say) a 3 per cent. shareholding. The plaintiff’s shares are merely a right of participation in the company on the terms of the articles of association. The shares themselves, his right of participation, are not directly affected by the wrongdoing. The plaintiff still holds all the shares as his own absolutely unencumbered property. The deceit practised upon the plaintiff does not affect the shares; it merely enables the defendant to rob the company.[5]
Customary international law likewise bars shareholders from bringing reflective loss claims. The most well-known example of this is the ICJ’s 1970 decision in Barcelona Traction.[6] In this case, the ICJ pointed out that while “a wrong done to the company frequently causes prejudice to its shareholders”, the mere fact that damage is sustained by both does not imply that both are entitled to claim compensation.[7] According to the ICJ, “whenever a shareholder’s interests are harmed by an act done to the company, it is to the latter that he must look to institute appropriate action; for although two separate entities may have suffered from the same wrong, it is only one entity whose rights have been infringed.” [8]
Accordingly, it is the common position of both domestic legal systems and international customary law that shareholders do not possess the right to pursue claims for indirect losses in the value of their shares resulting from harm inflicted upon the company.
However, investor-State arbitration diverges from this stance, as bilateral investment treaties (“BITs”) and other investment treaties offer avenues for shareholders to bring forward claims for reflective loss through investor-State arbitrations.[9] This note explores the legal underpinnings of these claims within investor-State arbitration, highlighting both their potential benefits and criticisms. It will also examine several proposed reforms aimed at managing the complex nature of reflective loss claims in international law.
The Legal Basis for Shareholders’ Claims
The ICSID Convention does not define investment and consequently does not define the requirements that an investment should meet to qualify for ICSID jurisdiction.
States have pointed out that Article 25(1) of the Convention indicates that “[t]he jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State”,[10] attempting to interpret this provision as requiring that the harm must accordingly be “directly” to the investment.
However, tribunals have interpreted the inclusion of the term “directly” as related not to the investment, but to the dispute, signifying that jurisdiction can exist even with respect to indirect investments so long as the dispute arises directly from such transactions.[11]
Therefore, investment treaties, not the ICSID Convention, form the legal basis for shareholders’ claims for reflective losses against states. This ability stems from the broad manner in which investment treaties define investment, particularly through the inclusion of shares as protected investments.[12] For example:
Argentina – United States BIT:
‘[I]nvestment’ means every kind of investment in the territory of one Party owned or controlled directly or indirectly by nationals or companies of the other Party, such as equity, debt, and service and investment contracts; and includes without limitation: […] shares of stock or other interests in a company or interests in the assets thereof[.][13]
The term ‘investment’ shall mean every kind of asset invested in the territory of one contracting Party in accordance with its laws and regulations by an investor of the other contracting party and shall mean in particular, though not exclusively: […] shares, debentures or any other forms of participation in companies[.][14]
Netherlands-Czech Republic BIT (now terminated):
[T]he term ‘investments’ shall comprise every kind of asset invested either directly or through an investor of a third State and more particularly, though not exclusively: […] shares, bonds and other kinds of interests in companies and joint ventures, as well as rights derived therefrom[.][15]
Investment tribunals have thus consistently relied on these and similar BIT provisions to accept shareholder claims for reflective losses.[16]
States have tried to counter such jurisdictional bases by arguing that even if reflective loss claims are permitted, only controlling or majority shareholders should be able to make them. They also contend that indirect shareholders do not have standing to seek compensation on the basis of shares directly held by intermediaries.[17]
However, arbitral tribunals have rejected these arguments, as the text of the BITs does not include any such limits.[18] For example, the tribunal in Lanco International Inc. v. Argentine Republic stated the following:
The Tribunal finds that the definition of [investment] in the Argentina-U.S. Treaty is very broad and allows for many meanings. For example, as regards shareholder equity, the Argentina-U.S. Treaty says nothing indicating that the investor in the capital stock has to have control over the administration of the company, or a majority share; thus the fact that [the claimant] holds an equity share of 18.3% in the capital stop of the Grantee allows one to conclude that it is an investor in the meaning of Article I of the Argentina-U.S. Treaty.[19]
Therefore, absent provisions to the contrary, investment treaties with provisions similar to those cited above have generally been interpreted as allowing shareholders to bring reflective loss claims.
Benefits and Criticisms of Reflective Loss in Investor-State Arbitration
While reflective loss claims in investor-State arbitration can offer meaningful recourse to shareholders, they are also fraught with complex challenges and criticisms.
Benefits of Reflective Loss in Investor-State Arbitration
One of the main benefits of reflective loss is its ability to provide recourse to shareholders who might otherwise be unable to claim for the losses that directly affect their investment. In typical domestic legal systems, as mentioned above, shareholders are generally prohibited from bringing a claim for a company’s direct losses due to the principle of separate legal personality — where the company is considered a distinct legal entity from its shareholders. In the context of investor-State arbitration, however, this limitation often does not apply.
Reflective loss claims allow shareholders to seek compensation for damages that flow from the harm suffered by the company, provided that the shareholder’s investment is impacted. This can be particularly useful when, for example, the controlling shareholder of the injured company is the State causing the harm, as was the case in SAUR International SA v. Republic of Argentina.[20] Under domestic law, the company would be the only party able to sue, but if the State itself controls the company, it is unlikely to pursue a claim against itself. This creates a situation where the shareholder is left without a remedy unless it can pursue a reflective loss claim in investor-State arbitration.
Another situation in which reflective loss claims can be especially valuable is where foreign shareholders hold stock in locally incorporated companies, which are prohibited under customary international law from bringing claims against their own government.[21] Likewise, investment treaties require that a claimant be “a national or company of the other Party” to the treaty, i.e., not a citizen of the respondent State, in order to bring a claim.[22] Similarly, the ICSID Convention allows the arbitration of disputes between a Contracting State and a national of another Contracting State.[23]
Therefore, when foreign shareholders hold stock in locally incorporated companies, which then suffer damage as a result of measures taken by the State, reflective loss claims in investment arbitration may be the only way for shareholders to receive compensation, as the company itself is unable to bring its own claim. This is particularly true as many domestic investment regimes require foreign investments to be made through or in a joint venture with local entities.[24]
Criticisms of Reflective Loss Claims
Despite these potential benefits, reflective loss claims in investor-State arbitration face criticisms, often from States, many of which mirror the concerns voiced by domestic legal systems when forbidding such claims:
Subversion of the Priority Order:
Domestic law typically grants creditors priority of a company’s assets in cases of insolvency by differentiating between the assets of the company – including the company’s claims against third parties – and the assets of the shareholders, thereby improving access to credit for the company.[25] However, a key challenge with reflective loss claims is that it allows shareholders to bypass the normal priority order of creditors, to effectively receive value back from the company ahead of the creditor.[26] The availability of such claims may thus result in changes in creditor behaviour including increasing the price and/or decreasing the availability of credit for foreign investment.[27]
Bypassing Corporate Decision-Making:
Through reflective loss claims, shareholders can also subvert the decision-making process of the company’s board, which typically decides whether to bring claims on behalf of the company. Shareholders with interests that differ drastically from the company’s may bypass the board’s judgment to seek compensation directly from the State, circumventing the interests of other stakeholders.[28] This interferes with the management of the company and may lead to inefficient corporate governance practices.[29]
Endless Chain of Claimants:
Allowing minority shareholders to claim independently from the affected corporation could also trigger an endless chain of claims, as any shareholder making an investment in a company that makes an investment in another company, and so on, could invoke a direct right of action for measures affecting a corporation at the end of the chain. This concern was recognised by the arbitral tribunal in Enron Corporation v. Argentine Republic, which stated that “while investors can claim in their own right under the provisions of the treaty, there is indeed a need to establish a cut-off point beyond which claims would not be permissible as they would have only a remote connection to the affected company.”[30] This can lead to inefficiencies in the dispute resolution process through parallel proceedings, and States may find it harder to predict if a settlement with the company will shield them from shareholder claims or vice versa.[31]
Potential for Treaty Shopping:
Another related concern is the possibility of treaty shopping, where investors may exploit favourable treaty provisions to bring claims that might not otherwise be possible under domestic law. This is possible when shareholders attribute their reflective loss claims to one or more entities in the chain of ownership between the shareholders and the company, depending on which entity has access to the most claimant-favourable treaty.[32]
Other Opportunistic Behaviour:
In addition to treaty shopping, shareholders may also exploit reflective loss claims by attributing them strategically to avoid debt obligations or other shareholders further down in the corporate chain. This raises risks for other investors and stakeholders, which will likely raise the cost of their capital.[33] Shareholders may also benefit from a successful claim for reflective loss and then again from payment of dividends or an increase in share value if the company is compensated by the State, leading to double recovery.[34]
Proposed Treaty Reforms
Given the criticisms noted above, several proposals have been made to reform the treatment of reflective loss in investment treaties.
Certain groups, such as the United Nations Commission on International Trade Law (“UNCITRAL”) Working Group III on Investor-State Dispute Settlement Reform,[35] have suggested that States tailor treaty provisions to prevent certain claims by certain investors, for example, by requiring a specific level of direct ownership or a significant degree of influence in the management of a company in order for a shareholder to have standing under the investment treaty.[36]
A practical example of this is the Turkey-Azerbaijan BIT, which forbids claims by shareholders with less than 10% of the company’s shares or voting power:
However; investments which are in the nature of acquisition of shares or voting power through stock exchanges amounting to, or representing of less than ten (10) percent of a company shall not be covered by this Agreement.[37]
Commentators have also suggested that States implement provisions that prohibit investor claims when the company is already seeking a remedy in another forum, allowing an investor to submit a claim only if both the investor and the local company withdraw any pending claims and waive their rights to seek remedies in other forums, and/or limit forum selection options to claims that have not been previously asserted elsewhere.[38]
Still others have pushed for the exclusion of reflective loss claims altogether, leaving shareholders only able to submit claims for their own direct losses or derivative claims on behalf of the company. For example, the Working Group proposed the following draft provision (“Draft Provision 10”) for inclusion in existing and future investment agreements in October 2023:
Draft provision 10: Shareholder claims
1. A shareholder may submit a claim pursuant to [Dispute resolution proceedings] on its own behalf only for direct loss or damage incurred as the result of a breach of the Agreement, which means that the alleged loss or damage is separate and distinct from any alleged loss or damage to the enterprise in which the shareholder holds shares. Direct loss or damage does not include diminution in the value of the shareholding or in the distribution of dividends to the shareholder as a result of loss or damage incurred by the enterprise.
2. A shareholder may submit a claim to a Contracting Party pursuant to [Dispute resolution proceedings] on behalf of an enterprise of that Contracting Party, which the shareholder owns or controls, only in the following circumstances:
(a) All assets of that enterprise is directly and wholly expropriated by that Contracting Party; or
(b) The enterprise sought remedy in that Contracting Party to redress its loss or damage but has been subject to treatment akin to a denial of justice under customary international law.
3. When the Tribunal makes a final decision in favour of the shareholder in a proceeding pursuant to paragraph 2, the Tribunal shall award monetary damages and any applicable interest or restitutions of property to the enterprise.[39]
This draft provision allows shareholders to submit claims for losses suffered directly by them, expressly excluding reflective losses. It also allows shareholders to bring claims on behalf of the company owned or controlled by the shareholders, but only in specific cases when all of the company’s assets are directly and entirely expropriated by the State or when the company is subject to denial of justice.
In January 2024, the Secretariat of the Organisation for Economic Co-operation and Development (“OECD”) responded to this proposal with its own draft provisions, requiring direct loss for claims, like Draft Provision 10.[40] However, the OECD’s proposal sets out the requirements for individual shareholder claims and derivative claims in separate draft provisions, allowing States wishing to oppose reflective loss claims under investment treaties without a derivative action to do so by including one provision and not the other.[41]
The first provision on shareholder claims defines direct loss with more specificity than Draft Provision 10:
2. For a claim to be for Direct Loss, the covered investor’s claimed injury must be separate and distinct from any alleged injury to an enterprise in which it has invested. A diminution in the value of a shareholding or investment in the enterprise, or in distributions to investors from the enterprise, which is the result of a loss suffered by the enterprise, is not injury which is separate and distinct from the damage suffered by the enterprise.
3.a. The requirement of Direct Loss is not satisfied by the fact that a respondent state allegedly has a treaty obligation to the covered investor or that the alleged obligation may have a different basis than an obligation to the enterprise.
b. To the extent if any that the treaty may apply to claims for loss of opportunity, once an enterprise is constituted, the loss of an opportunity to conduct business activities carried out or expected to be carried out by the enterprise cannot constitute Direct Loss for a covered investor in the enterprise.[42]
The separate provision on derivative claims provides for broader availability of such claims, allowing an investor to submit a claim on behalf of a locally established enterprise that it owns or controls “(i) that the respondent has breached [relevant provisions of the Treaty], and (ii) that the locally established enterprise has incurred loss or damage by reason of, or arising out of, that breach.”[43] Thus, the OECD’s proposal does not require total expropriation of the company’s assets or denial of justice in order for a shareholder to bring a derivative claim, unlike Draft Provision 10.
However, the OECD’s proposal clarifies that to have ownership over a company, it must beneficially own more than 50% of the company’s equity interests, and to have control, it must have the power to name a majority of its directors or otherwise to legally direct its actions.[44] These terms are not defined in Draft Provision 10.
The OECD’s provisions also require that for investors to submit a claim, they must also submit to the State, inter alia, written waivers by the investor and the company of any right to initiate or continue court or administrative proceedings or any other dispute settlement procedures with respect to the alleged breach.[45] This seeks to prevent double recovery by shareholders and duplicative proceedings.
Thus, these proposals represent two examples of potential treaty provisions that States may use to reduce the availability of reflective loss claims by explicitly excluding them from treaty protection.
Another potential treaty reform that has been suggested to specifically address the risk of duplicative proceedings with respect to reflective loss is the inclusion of consolidation mechanisms in investment treaties.[46] Consolidation provisions typically allow two or more arbitration proceedings to be merged where multiple shareholders bring claims under the same investment treaty with respect to the same measures.[47]
Some examples of such provisions include:
The Comprehensive Economic and Trade Agreement between Canada and the EU (“CETA”), Article 8.43:
When two or more claims have been submitted separately pursuant to Article 8.23 have a question of law or fact in common and arise out of the same events or circumstances, a disputing party or the disputing parties, jointly, may seek the establishment of a separate division of the Tribunal pursuant to this Article and request that such division issue a consolidation order (“request for consolidation”).[48]
The ASEAN-Australia-New Zealand Free Trade Agreement (“AANZFTA”), Chapter 11, Article 24:
Where two or more claims have been submitted separately to arbitration under Article 20 (Claim by an Investor of a Party), and the claims have a question of law or fact in common and arise out of the same or similar events or circumstances, all concerned disputing parties may agree to consolidate those claims in any manner they deem appropriate.[49]
However, consolidation mechanisms have certain limitations.[50] For example, like Article 24 of the AANZFTA, certain provisions require all parties to agree on consolidation, making it easy for any party to oppose. Further, consolidation provisions are ineffective when shareholders bring claims on the basis of the same measures but under different treaties.
Nevertheless, consolidation provisions are becoming more common in investment treaties and may be another way that States address their concerns with reflective loss claims.
Conclusion
The issue of shareholders’ claims for reflective losses in investor-State arbitration is a dynamic and evolving area of international investment law. While such claims can provide shareholders with avenues for redress, they also raise concerns regarding fairness, efficiency, and corporate governance.
As the legal landscape evolves, reforms like stricter ownership requirements, clearer distinctions between direct and reflective losses, and mechanisms for consolidation in arbitration could reduce shareholder access to reflective loss claims. Whether these reforms will be widely implemented remains to be seen, but one thing is certain: the international investment community will continue to wrestle with the balance between protecting shareholder interests and maintaining the stability of corporate structures.
[1] OECD, Roundtable on Freedom of Investment 19, 15–16 October 2013, https://web-archive.oecd.org/2014-02-11/265829-19thFOIroundtableSummary.pdf (last accessed 28 January 2025), pp. 18-19.
[2] A. Suraweera, Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States, 38(3) ICSID Review, p. 598.
[3] A. Suraweera, Reforming Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement, 23 May 2023, https://icsid.worldbank.org/news-and-events/speeches-articles/reforming-shareholder-claims-reflective-loss-investor-state (last accessed 29 January 2025).
[4] OECD, Roundtable on Freedom of Investment 19, 15-16 October 2013, https://web-archive.oecd.org/2014-02-11/265829-19thFOIroundtableSummary.pdf (last accessed 29 January 2025), p. 12.
[5] Prudential Assurance Co Ltd v Newman Industries Ltd, [1982] Ch. 204, pp. 222-223.
[6] Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) (Judgment of 5 February) [1970] ICJ Rep 3.
[7] Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) (Judgment of 5 February) [1970] ICJ Rep 3, para 44.
[8] Ibid.
[9] A. Suraweera, Reforming Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement, 23 May 2023, https://icsid.worldbank.org/news-and-events/speeches-articles/reforming-shareholder-claims-reflective-loss-investor-state (last accessed 29 January 2025).
[10] ICSID Convention, Article 25(1).
[11] Fedax v. Venezuela, Decision of the ICSID Tribunal on Objections to Jurisdiction, 11 July 1997, para. 24.
[12] A. Suraweera, Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States, 38(3) ICSID Review, p. 602.
[13] Treaty Between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment, adopted on 14 November 1991, Article I(1).
[14] Agreement Between the Government of the Kingdom of Norway and the Government of the Republic of Latvia on the Mutual Promotion and Protection of Investments, adopted on 16 June 1992, Article I(1)(ii).
[15] Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic, adopted on 29 April 1991, Article 1(a)(ii).
[16] S. Wuschka, Shareholders Direct Claim, https://jusmundi.com/en/document/publication/en-shareholders-direct-claim (last accessed 28 January 2025), para. 4; Peteris Pildegovics and SIA North Star v. Kingdom of Norway, ICSID Case No. ARB/20/11, Award, 22 December 2023, para. 257; CMS Gas Transmission Company v. The Argentine Republic, ICSID Case No. ARB/01/8, Decision of the Tribunal on Objections to Jurisdiction, 17 July 2003, para. 65.
[17] Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB/14/32, Award, 5 November 2021, para. 325.
[18] Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB/14/32, Decision on Jurisdiction, 29 June 2018, paras. 177-179; Lanco International Inc. v. Argentine Republic, Preliminary Decision of the ICSID Tribunal, 8 December 1998, para. 10; Vivendi, ICSID Annulment Decision of July 3, 2002, para. 50; Tulip Real Estate Investment and Development Netherlands B.V. v. Republic of Turkey, ICSID Case No. ARB/11/28, Award, 10 March 2014, para. 201.
[19] Lanco International Inc. v. Argentine Republic, Preliminary Decision of the ICSID Tribunal, 8 December 1998, para. 10.
[20] A. Suraweera, Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States, 38(3) ICSID Review, p. 604; SAUR International SA v. Republic of Argentina, ICSID Case No. ARB/04/4, Decision on Jurisdiction and Liability (6 June 2012).
[21] A. Suraweera, Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States, 38(3) ICSID Review, p. 605.
[22] See, e.g., Treaty Between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment, adopted on 14 November 1991, Article VII.
[23] ICSID Convention, Article 25(2).
[24] A. Suraweera, Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States, 38(3) ICSID Review, p. 605.
[25] Id., p. 606; OECD, Roundtable on Freedom of Investment 19, 15–16 October 2013, https://web-archive.oecd.org/2014-02-11/265829-19thFOIroundtableSummary.pdf (last accessed 28 January 2025), p. 13.
[26] Ibid.
[27] D. Gaukrodger, Investment Treaties and Shareholder Claims for Reflective Loss: Insights from Advanced Systems of Corporate Law, 2014, https://www.oecd.org/content/dam/oecd/en/publications/reports/2014/07/investment-treaties-and-shareholder-claims-for-reflective-loss-insights-from-advanced-systems-of-corporate-law_g17a2516/5jz0xvgngmr3-en.pdf (last accessed 30 January 2025), p. 29.
[28] Id., p. 23.
[29] Id., p. 24.
[30] Enron Corporation and Ponderosa Assets, L.P. v. Argentine Republic, ICSID Case No. ARB/01/3, Decision on Jurisdiction, 14 January 2004, para. 52.
[31] A. Suraweera, Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States, 38(3) ICSID Review, pp. 606-607.
[32] OECD, Treaty shopping and tools for treaty reform, 12 March 2018, https://web-archive.oecd.org/2018-03-22/471951-4th-Annual-Conference-on-Investment-Treaties-agenda.pdf (last accessed 30 January 2025), p. 13.
[33] OECD, Treaty shopping and tools for treaty reform, 12 March 2018, https://web-archive.oecd.org/2018-03-22/471951-4th-Annual-Conference-on-Investment-Treaties-agenda.pdf (last accessed 30 January 2025), pp. 13-14.
[34] A. Suraweera, Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States, 38(3) ICSID Review, p. 607.
[35] According to UNCITRAL, “Working Groups undertake the substantive preparatory work on topics on UNCITRAL’s work programme. Membership of working groups currently includes all States members of UNCITRAL. A Working Group typically meets twice a year, holding a spring session in New York and a fall session in Vienna.” Working Documents, https://uncitral.un.org/en/gateway (last accessed 31 January 2025).
[36] UNCITRAL Working Group III, Possible reform of investor-State dispute settlement (ISDS): Shareholder claims and reflective loss, 9 August 2019, https://documents.un.org/doc/undoc/ltd/v19/085/33/pdf/v1908533.pdf (last accessed 30 January 2025), para. 27.
[37] Agreement Between the Government of the Republic of Turkey and the Government of the Republic of Azerbaijan on the Reciprocal Protection and Promotion of Investments, signed 25 October 2011, Article 1.
[38] UNCITRAL Working Group III, Possible reform of investor-State dispute settlement (ISDS): Shareholder claims and reflective loss, 9 August 2019, https://documents.un.org/doc/undoc/ltd/v19/085/33/pdf/v1908533.pdf (last accessed 30 January 2025), para. 29; A. Suraweera, Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States, 38(3) ICSID Review, pp. 612-614.
[39] UNCITRAL Working Group III, Possible reform of investor-State dispute settlement (ISDS): Draft provisions on procedural and cross-cutting issues, 26 July 2023, https://documents.un.org/doc/undoc/ltd/v23/059/71/pdf/v2305971.pdf (last accessed 30 January 2025), p. 6.
[40] OECD, Comments and reform proposals with regard to Draft provision 10 (Shareholder claims), January 2024, https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/oecd_secretariat_dp.10.pdf (last accessed 30 January 2025).
[41] Id., p. 5.
[42] Id., p. 6.
[43] Id., p. 11.
[44] Ibid.
[45] Ibid.
[46] A. Suraweera, Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States, 38(3) ICSID Review, p. 609; OECD, Shareholder Claims for Reflective Loss in Investment State Dispute Settlement: A “Component-by-Component” Approach to Reform Proposals, December 2021, https://uncitral.un.org/sites/uncitral.un.org/files/oecd_shareholder_claims_for_reflective_loss_in_isds_-_informal_discussion_paper_for_uncitral_wg_iii.pdf (last accessed 29 January 2025), para. 94.
[47] Ibid.
[48] Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, signed 30 October 2016, Article 8.43.
[49] See Second Protocol to Amend the Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area, adopted 21 August 2023, Chapter 11, Article 25.
[50] A. Suraweera, Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States, 38(3) ICSID Review, pp. 609-610.