States’ Shareholding as a Tool of Investment Control in Strategically Important Companies: Any Consequences for International Responsibility?

The investment screening regulations are not the only tool the states use to control the influx of foreign investments. Arguably, it is rather the states’ shareholding that has traditionally been the main tool of investment control. Furthermore, in order to preserve their stake in the companies many states resort to mechanisms enhancing their corporate control over strategic companies. The question whether implementation of such mechanisms could not automatically translate into states’ responsibility for their actions is what this article explores. In order to answer this question, following issues will be thematized: First, legal framework governing the corporate control over companies, governed mainly by the domestic laws. Second, the effects of the state’s shareholding in enterprises on the imputability of their actions to the sovereigns under the international rules on attribution, with particular emphasis on WTO, ECHR, ISDS and EU legal frameworks. Third, whether the utilisation of the corporate control enhancement instruments would translate into the states’ responsibility for their actions under the aforesaid rules. As the analysis demonstrates, however, this is not the case. While my reconstruction of the corporate control enhancing rests on the Polish domestic regulations, I am convinced that the conclusions of my research may be relevant also for other legal systems.