Chapter 7 Investment arbitration as an engine of development of the rules of attribution - with particular focus on lex specialis and de facto state organs
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This chapter analyzes the practice of investment tribunals in questions of attribution in the field of international responsibility. It starts by briefly discussing the relevance of the rules of attribution as enshrined in the ILC Articles on Responsibility of States for Internationally Wrongful Acts and their general application in investment arbitration, and the survey discloses that investment tribunals usually do not face great problems in that application as a matter of principle. The chapter then looks into two particular issues of attribution. The first is that of lex specialis. While some tribunals have liberally assumed the existence of such a rule with the effect of excluding the general rules of attribution, a close analysis reveals that the nature of the relevant norm is not one of attribution but in reality one of conduct. The second issue is that of the concept of de facto state organ, which has developed in general international law and describes the status of persons or entities who are not formally assigned the position of organs under the domestic law but who assume that status under internal practice (Article 4 para 2 ARSIWA). Tribunals in investment arbitration have generally been very compliant in adopting the concept of de facto organs. More importantly, while the concept of de facto state organs under general international law has been applied almost exclusively in the context of military or paramilitary activities, the practice of investment tribunals has transferred it to state entities or instrumentalities and developed various criteria in assessing attribution of conduct to the state. Despite problems of incoherence, the case law shows that investment arbitration, by applying, interpreting and adapting the ILC Articles on attribution, has clarified and consolidated the general rules and continues to shape a solid fundament on which future tribunals may build their cases.

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