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Attribution and State Entities: Diverging Approaches in Investment Arbitration

Attribution and State Entities: Diverging Approaches in Investment Arbitration I. INTRODUCTION The attribution of conduct of State entities plays a decisive role in many investment arbitration cases. Arbitral tribunals are regularly called upon to examine the activities of entities outside the official structure of the State, who are nonetheless in a position to significantly harm the interests of foreign investors. Often, it is precisely the conduct of such entities rather than the conduct of State organs that gives rise to investment disputes. Accordingly, it is essential for arbitral tribunals to develop a consistent practice in the application of the rules of attribution under public international law to State entities. Earlier jurisprudence, with a few laudable exceptions, displayed significant inconsistency and imprecision in its application of the law. As a counterpoint, this article purports to detect a divergent recent jurisprudence demonstrating greater consistency and accuracy in applying the rules of attribution. The legal status of entities located on the borderline between "public" and "private" under international law has received significant scholarly attention for many years.2 This derives, in particular, from the traditionally State-centred perspective of international laws for which the use of separate entities instead of State organs constitutes a legal challenge. In many countries, privatization has resulted http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of World Investment and Trade Brill

Attribution and State Entities: Diverging Approaches in Investment Arbitration

Journal of World Investment and Trade , Volume 12 (2): 16 – Jan 1, 2011

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1660-7112
eISSN
2211-9000
DOI
10.1163/221190011X00210
Publisher site
See Article on Publisher Site

Abstract

I. INTRODUCTION The attribution of conduct of State entities plays a decisive role in many investment arbitration cases. Arbitral tribunals are regularly called upon to examine the activities of entities outside the official structure of the State, who are nonetheless in a position to significantly harm the interests of foreign investors. Often, it is precisely the conduct of such entities rather than the conduct of State organs that gives rise to investment disputes. Accordingly, it is essential for arbitral tribunals to develop a consistent practice in the application of the rules of attribution under public international law to State entities. Earlier jurisprudence, with a few laudable exceptions, displayed significant inconsistency and imprecision in its application of the law. As a counterpoint, this article purports to detect a divergent recent jurisprudence demonstrating greater consistency and accuracy in applying the rules of attribution. The legal status of entities located on the borderline between "public" and "private" under international law has received significant scholarly attention for many years.2 This derives, in particular, from the traditionally State-centred perspective of international laws for which the use of separate entities instead of State organs constitutes a legal challenge. In many countries, privatization has resulted

Journal

Journal of World Investment and TradeBrill

Published: Jan 1, 2011

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