Attribution in Investment Treaty Arbitration

Abstract

Attribution, broadly defined as the operation or process aimed at identifying and circumscribing the conduct of individuals which is properly to be treated as constituting that of the State, plays a central role in public international law, including in the specialized sub-field of investment treaty arbitration. Despite its ubiquitous relevance in international law, the pre-eminent role played by the process of attribution is in the field of State responsibility, where its function is to identify the conduct which may, if it constitutes a breach of an international obligation of a State, result in that State’s international responsibility. In large part as a result of the work of the International Law Commission (ILC) in elaborating the Articles on Responsibility of States for Internationally Wrongful Acts (the Articles, or ARSIWA), 2 the content of the relevant customary rules of attribution for the purposes of the law of State responsibility is relatively clear and well established. Rather than simply providing a detailed account of those rules and how they have been applied by tribunals in investment treaty arbitration, the present piece instead examines a number of more general issues relating to the correct application of the relevant rules of attribution in the context of investment treaty disputes.