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ALESSANDRO IANNIELLO SALICETI European Commission, DG Justice.

ALESSANDRO IANNIELLO SALICETI European Commission, DG Justice. Fellow at the Sant’Anna School for Advanced Studies, University of Pisa in Italy. PROTECTION OF ENTERPRISES AND INVESTORS ABROAD. Diplomatic and consular issues concerning Chinese and EU enterprises and investors.

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ALESSANDRO IANNIELLO SALICETI European Commission, DG Justice.

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  1. ALESSANDRO IANNIELLO SALICETI European Commission, DG Justice. Fellow at the Sant’Anna School for Advanced Studies, University of Pisa in Italy.

  2. PROTECTION OF ENTERPRISES AND INVESTORS ABROAD Diplomatic and consular issues concerning Chinese and EU enterprises and investors. -EU enterprises worldwide -Chinese enterprises worldwide

  3. Life of an enterprise abroad On a temporary basis (for the construction of a dam, of an off-shore platform, for shipping and transporting goods, etc.) On a permanent basis (subsidiaries and permanent offices and industrial plants)

  4. Armed conflicts, war, revolution, Need of protection An enterprise is not a virtual entity: Managers, workers, industrial centres, crew, machinery and tools, vesselss, cargo, assets and other property abroad.

  5. Non-authorized Self-Defense An enterprise abroad may not hire military to protect its premises, property and staff. State protection is needed Concept of State protection : XVII century (Vattel, Pufendorf, Wolff) Vertical relation between the State and « its » subjects (Hobbes)

  6. Enteprises in danger abroad Coup d’état (Civil) War (example of structural issues) Capture of a Vessel Hostage-taking (example of specific issue) Economic and financial issues (the host country confiscates foreign property and assets, - insolvency of banks and of the host country (bonds)

  7. Protection of the enteprise or Protection of the shareholders ? Protection of the staff ? Protection of the property ?

  8. BARCELONA TRACTION Belgium vs. Spain 88% of shareholders were Belgians But the company was based and registered in Canada (= Canadian company) No locus standi for Belgium (rather for Canada) on customary international law

  9. ELSI SICULA U.S.A. vs. Italy -100% shareholders wer US nationals -Company based and registered in Italy US-Italy Treaty of Friendship > US authorities are entitled to protect US enterprises in Italy

  10. Dissenting opinions of judges Petrén and Oneyama BARCELONA TRACTION: Yes, Canada is entitled to protect the company as such But Belgium is likewise, in parallel, entitled to protect its own Belgian nationals (shareholders)

  11. DIALLO Guinea vs. Congo RD Shareholder was from Guinea The company was based and registered in Congo Admissible claim: Guinea can protect its (shareholder) national against Congo, but may not protect the Congo-based company

  12. Position of the Chinese government No dualism: 55th Session of the International Law Commission, Statement of the Chinese representative : Barcelona traction doctrine The State of nationality of the company (=the State were the company is registered and based) is the sole entitled to protect the company and its shareholders

  13. EU LAW ARTICLE 23 of the TFEU (Treaty on the Functioning of the European Union) Decision 95/553/EC Citizens only = natural persons Article 54 of the TFEU ? Equal treatment between natural persons (EU citizens) and legal persons (companies)

  14. ART. 54 TFEU Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.

  15. STRASBOURG HR Court ...the Court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant State. [1] [1] European Court of Human Rights, decision of 12 December 2001, Bankovic’ and others v. Belgium and other States.

  16. STRASBOURG HR Court …It is clear, in this respect, from the constant jurisprudence of the Commission that authorized agents of a State, including diplomatic and consular agents bring other persons or property within the jurisdiction of that State to the extent that they exercise authority power over such persons or property. Insofar they affect such persons or property by their acts or omissions, the responsibility of the State is engaged.[1] [1] European Commission of Human Rights, decision of 15 December 1977, X v. United Kingdom.

  17. EUROPEAN COMMISSIONwebsite on protection of EU citizens List of EU Embassies and Consulates in the world http://ec.europa.eu/consularprotection/

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