Les réclamations d’actionnaires pour pertes par ricochet en arbitrage investisseur-État sous les traités d’investissement canadiens

Abstract

Investor-State arbitration, an emblematic as well as controversial dispute resolution method in international investment law, raises a number of issues, including the possibility for shareholders to claim compensation for reflective losses. These claims allow shareholders who meet the applicable definition of foreign investors to seek compensation in investor-State arbitrations for damages in the form of a reduction in the value of their shares. Such a possibility, while important and consistent with international investment law’s objective to protect foreign investors and their investments, generates a series of risks which, if not considered, may result in infringements on the rights of States, defendants in investor-state arbitration proceedings, and ultimately, undermine the legitimacy of this particular dispute resolution mechanism. Canada’s 2021 Foreign Investment Promotion and Protection Agreement (FIPA) Model seems to allow for such claims, while attempting to limit the risks of multiple proceedings and the dangers of double compensation and inconsistency that they generate by using two mechanisms in particular: waivers and the consolidation of claims.