Universität zu Köln

Mansouri, Roohollah ORCID: 0009-0004-8688-8588 (2024). Qualification of Central Banks as Foreign Investors in Light of Recent Developments in International Law: Focus on the ICJ Judgments in the Case Concerning Certain Iranian Assets. CIFILE Journal of International Law (CJIL), 5 (10). pp. 32-47. Canadian Institute for International Law Expertise. ISSN 2563-3341

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Abstract

Central banks, which traditionally perform exclusively sovereign functions associated with their role as guardians of national monetary and fiscal policies, have increasingly diversified their roles in the evolving financial landscape. They now embrace a range of commercial activities aligned with international banking practices and investment ventures. The dual role they play in today’s world sparks vital questions about how to characterize their activities, which subsequently influences their protection under international law. Such characterization becomes particularly significant in international investment law, as public entities can only claim investment treaty protections if engaged in commercial activities. Two primary tests—based on an activity’s purpose and its nature—serve to distinguish between commercial and sovereign roles. Of course, the “nature test” is increasingly gaining prominence in international jurisprudence. A salient exemplar of this discourse is seen in the case concerning Certain Iranian Assets before the ICJ. In 2019, the Court recognized that the Central Bank of Iran, Bank Markazi, could qualify for treaty protections if its U.S.-based operations were commercial in nature. Whereas an in-depth analysis in the present research suggests that Bank Markazi’s U.S. bond transactions largely bear a commercial hallmark, the ICJ, in a divergent decision in 2023, declined to classify the Bank as a company eligible for treaty protections. This shift from the Court’s earlier stance highlights a need for consistency in the application of international law and prompts deeper inquiry into the trajectory of international legal discourse.

Item Type:	Article
Creators:	Creators Email ORCID ORCID Put Code Mansouri, Roohollah UNSPECIFIED https://orcid.org/0009-0004-8688-8588 UNSPECIFIED
URN:	urn:nbn:de:hbz:38-810476
Identification Number:	10.30489/cifj.2023.424602.1093
Journal or Publication Title:	CIFILE Journal of International Law (CJIL)
Volume:	5
Number:	10
Page Range:	pp. 32-47
Date:	September 2024
Publisher:	Canadian Institute for International Law Expertise
ISSN:	2563-3341
Language:	English
Faculty:	Faculty of Law
Divisions:	Faculty of Law > Öffentliches Recht > Institut für Völkerrecht und Ausländisches Öffentliches Recht
Subjects:	Law
Uncontrolled Keywords:	Keywords Language Central Bank ; Foreign Investor ; Treaty Protection ; ICJ ; Certain ; Iranian Assets ; Commercial Activity ; Sovereign Function ; Nature Test ; Bonds and Securities ; Portfolio Investment ; Expropriation English
Refereed:	Yes
URI:	http://kups.ub.uni-koeln.de/id/eprint/81047