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The Article recognizes that diplomatic protection may be extended to corporations. The provision makes it clear that in order to qualify as the state of nationality for the purpose of diplomatic protection of a corporation certain conditions must be met, as is the case with the diplomatic protection of natural persons.
(p. 133) State practice is largely concerned with the diplomatic protection of corporations, that is profit-making enterprises with limited liability whose capital is generally represented by shares, and not other legal persons. Thus, this Article and Articles 10 to 12 are concerned with the diplomatic protection of corporations and shareholders in corporations.
As with natural persons, the granting of nationality to a corporation is ‘within the reserved domain’ of a State. 166 Again, as the ICJ stated in the Barcelona Traction Case:
… international law has to recognize the corporate entity as an institution created by States in a domain essentially within their domestic jurisdiction. This in turn requires that, whenever legal issues arise concerning the rights of States with regard to the treatment of companies and shareholders, as to which rights international law has not established its own rules, it has to refer to the relevant rules of municipal law. 167
Although international law has no rules of its own for the creation, management, and dissolution of a corporation or for the rights of shareholders and their relationship with the corporation, and must consequently turn to national law for guidance on this subject, it is for international law to determine the circumstances in which a State may exercise diplomatic protection on behalf of a corporation or its shareholders. This matter was addressed by the also ICJ in the Barcelona Traction Case when it stated that international law ‘attributes the right of diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and in whose territory it has its registered office’. 168 Here the court set two conditions for the acquisition of nationality by a corporation for the purposes of diplomatic protection: incorporation and the presence of the registered office of the company in the State of incorporation. As the laws of most States require a company incorporated under its laws to maintain a registered office in its territory, even if this is a mere fiction, incorporation is the most important criterion for the purposes of diplomatic protection. The court in the Barcelona Traction Case was not, however, satisfied with incorporation as the sole criterion for the exercise of diplomatic protection. Although it did not reiterate the requirement of a ‘genuine connection’ as applied in the Nottebohm Case, 169 and acknowledged that ‘in the particular field of the diplomatic protection of corporate entitled, no absolute test of the “genuine connection” has found general acceptance’, 170 it suggested that in addition to incorporation and a registered office, there was a need for some ‘permanent and close connection’ between the State exercising diplomatic protection and the corporation. 171 (p. 134) On the facts of this case the court found such a connection in the incorporation of the company in Canada for over fifty years, the maintenance of its registered office, accounts and share register there, the holding of board meetings there for many years, its listing in the records of the Canadian tax authorities and the general recognition by other States of the Canadian nationality of the company. 172 All of this meant, that ‘Barcelona traction's links with Canada are thus manifold’. 173 In the Barcelona Traction Case the court was not confronted with a situation in which a company was incorporated in one State but had a ‘close and permanent connection’ with another State. The court did not indicate what it might have decided in such a situation. Article 9 does, however, provide for such cases.
Article 9 accepts the basic premise of the Barcelona Traction Case that it is incorporation that confers nationality on a corporation for the purposes of diplomatic protection. However, it provides an exception in a particular situation where there is no other significant link or connection between the State of incorporation and the corporation itself, and where certain significant connections exist with another State, in which case that other State is to be regarded as the State of nationality for the purpose of diplomatic protection. Policy and fairness dictate such a solution. It is wrong to place the sole and exclusive right to exercise diplomatic protection in a State with which the corporation has the most tenuous connection as in practice such a State will seldom be prepared to protect such a corporation.
Article 9, thus, provides that in the first instance the State in which a corporation is incorporated is the State of nationality entitled to exercise diplomatic protection. When, howeve, the circumstances indicate that the corporation has a closer connection with another State, a State in which the seat of management and financial control are situated, that state is to be regarded as the State of nationality with the right to exercise diplomatic protection. Certain conditions must, however, be fulfilled before this occurs. First, the corporation must be controlled by nationals of another State. Secondly, it must have no substantial business activities in the State of incorporation. Thirdly, both the seat of management and the financial control of the corporation must be located in another State. Only where these conditions are cumulatively fulfilled does the State in which the corporation has its seat of management and in which it is financially controlled quality as the State of nationality for the purposes of diplomatic protection.
In the Barcelona Traction Case the ICJ warned that the granting of the right of diplomatic protection to the States of nationality of shareholders might result in a multiplicity of actions which ‘could create an atmosphere of confusion and insecurity in international economic relations’. 174 The same confusion might result from the granting of the right to exercise diplomatic protection to several States with which a corporation enjoys a link or connection. Article 9 does not (p. 135) allow such multiple actions. the State of nationality with the right to exercise diplomatic protection is either the State of incorporation or, if the required conditions are met, the State of the seat of management and financial control of the corporation. If the seat of management and the place of financial control are located in different States, the State of incorporation remains the State entitled to exercise diplomatic protection.
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