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PARTⅠ SWFS:NEW ACTORS IN THE INTERNATIONAL SCENE. A DEFINITION AND CLASSIFICATION3

1 Sovereign entities investing abroad as private entities:limits of the conventional framework3

1. State investors between public and private, national and international law3

2. Specific issues raised by SWFs5

2.1 The recent and quick growth of the phenomenon:a review of causes and consequences6

2.2 Issues brought by recent developments10

3. Rationale and objectives of this work14

2 SWFs:definition and classification17

1. The definitions in literature17

1.1 Functional definitions18

1.2 The differences between SOEs and SWFs21

1.3 The ‘five pillars’ definition23

1.4 The definitions misconception （definition by classification）24

2. The definition in the International Organisations’ practice26

2.1 The IMF and OECD definitions26

2.2 The limits of IMF definition and classification29

2.3 The consequences of the lack of a shared notion30

3. The definition and classification suggested31

3.1 Our proposed definition31

3.2 The resulting classification32

PARTⅡ SWFS’ NATIONAL AND INTERNATIONAL REGULATION39

3 Sovereign wealth funds’ regulation39

1. The proposals found in literature40

1.1 The‘book of rules’model41

1.2 The‘double constraint’theory43

1.3 The temporary suspension of voting rights and other related measures44

2. The IMF guidelines（‘Santiago GAPPs’）46

2.1 GAPP assumptions and their limits46

2.2 The classification by regulatory/institutional framework and by investment activity48

2.3 The limits of Santiago GAPPs’classification50

3. A proposal to transform conduct codes into measures binding on host and home states52

3.1 At domestic level: host states’restrictive measures applicable only to SWFs not complying with GAPPs53

3.2 At international level: the guidelines as a benchmark in bilateral investment treaties54

4 Host states’laws and SWFs55

1. The governing law: obligations of host states55

1.1 In WTO treaties56

1.2 In OECD regulations59

1.3 In EU laws60

2. Exemptions from host states’obligations61

2.1 In WTO treaties61

2.2 In OECD regulations62

2.3 In EU law and practice64

2.4 Exemptions applied by host states: preventive and repressive measures68

3. Little efficacy of the measures adopted at multilateral and national level76

3.1 Soft law and international protection of SWFs investment76

3.2 Host state measures, law and practice78

4. The challenging task SWFs must carry out, and some proposals to simplify it83

PART Ⅲ SWFS’PROTECTION IN BILATERAL RELATIONS89

5 SWFs and state immunity89

1. In search of a direct relationship89

2. ‘Passive’and‘active’immunity: host state and SWF actions relevant for applying state immunity91

2.1 Host state actions that might be challenged by an SWF under the profile of state immunity91

2.2 SWF actions and assets that might be protected by state immunity92

3. Immunity from jurisdiction and immunity from execution92

3.1 Immunity from jurisdiction93

3.2 Immunity from execution96

4. Application of state immunity to SWFs99

4.1 Attribution to a state of the activities and ownership of SWF assets for immunity purposes99

4.2 The‘tax exemption’factor106

4.3 SWFs,state immunity and competition law: the need to overcome a misunderstanding109

4.4 SWF models and immunity: a five-step analysis111

4.5 Conclusions114

6 SWFs and bilateral investment treaties116

1. An undiscovered relationship116

2. Bilateral investment treaties and their relevance for SWF investments124

2.1 Theoretical analysis124

2.2 SWFs’home states’practice126

3. The main BIT models.Assessment of their efficacy with respect to SWF investments132

3.1 Existing models133

3.2 Renegotiation under way137

3.3 The efficacy of existing models in protecting SWF investments142

4. Final remarks149

7 Conclusions151

1. Conclusions151

Bibliography157

Index169