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The constant exchange of investment assets poses a risk of ‘commoditisation’ of investment treaty claims. Nevertheless, both traditional and modern investment treaties contain sufficient safeguards against attempts by host State ‘insiders’ and third State ‘intruders’ to create artificial access to arbitration. First, the definition of ‘investment’ can filter genuine investments from bare acquisition of assets (ratione materiae). Second, the textual linkage between ‘investor’ and ‘investment’ strongly implies that ‘active contribution’ in the investment is required from assignees to qualify for protection (ratione personae). Third, the doctrine of abuse of rights prevents treaty shopping and internationalisation of domestic disputes (ratione temporis).
The Court may only prosecute crimes committed subsequent to entry into force of the Statute. It may prosecute crimes perpetrated on the territory of a State Party as well as crimes commited elsewhere but by nationals of a State Party. It may also exercise jurisdiction with respect to a non-party State that formulates a declaration pursuant to Article 12(3), and several States have done this. The Court may also prosecute any situation that is referred by the United Nations Security Council, regardless of the place where the crime is committed or the nationality of the accused. Four crimes fall within the subject-matter jurisdiction of the Court: genocide, crimes against humanity, war crimes and the crime of aggression. Lengthy definitions in the Statute are supplemented by further provisions in the Elements of Crimes. The Court may also prosecute a limited number of offences that concern the administration of justice, such as tampering with witnesses.
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