JURISDICTIONAL CHALLENGES TO CLAIMS MADE BY TRUST & TRUST PARTICIPANTS IN INVESTMENT TREATY ARBITRATION
Claims made by trust & its participants in investment treaty arbitration is relatively a new phenomenon which has been left untouched by a majority of scholars. While trusts have no domicile across major common law jurisdictions, they have been increasingly used by states and private entities to enter into transactions that involves voluminous inflow and outflow of capital and at the same time risk protection. At the outset, the authors have provided a general description of trusts and the rights and obligations of the parties set out in trust structures. The authors aim to discuss the standing of trusts as an entity to make claims for a breach of provisions of a treaty and at the same time elucidate upon the intricacies involved for trust parties namely, trustee, protector, settlor, and beneficiary, to make a claim subsequent to a dispute arising out of the treaty provisions. Further, the authors have ventured to discuss various case laws pertaining to both standing of trusts and trust parties that expose the legal conundrums, such as control and ownership, involved in arriving at a conclusion as to standing of the concerned parties. Towards the end the authors have tried to summarise the entire discussion while maintaining that it is entirely upon the parties to the arbitration agreement and the drafting of the treaty provisions to include or exclude claims by trusts or trust parties.