In recent years, investor-state tribunals have often permitted
shareholders' claims for reflective loss despite the
well-established principle of no reflective loss applied
consistently in domestic regimes and in other fields of
international law. Investment tribunals have justified their
decisions by relying on definitions of 'investment' in investment
agreements that often include 'shares', while the
no-reflective-loss principle is generally justified on the basis of
policy considerations pertaining to the preservation of the
efficiency of the adjudicatory process and to the protection of
other stakeholders, such as creditors. Although these policy
considerations militating for the prohibition of shareholders'
claims for reflective loss also apply in investor-state
arbitration, they are curable in that context and must be balanced
with policy considerations specific to the field of international
investment law that weigh in favor of such claims: the protection
of foreign investors in order to promote trade and investment
liberalization.
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