Contributory Fault and Investor Misconduct in Investment Arbitration

Abstract

Deriving from public international law, the evolution of international investment law (IIL) was accelerated by (at least the first generation of) international investment agreements (IIAs) and investor–State arbitration (ISA). IIAs and, more particularly, the ISA system were conceived of as a form of protection for foreign investors against perceived political risks in jurisdictions with doubtful rule of law.2 Thus, the ISA system is said to ‘have developed a supranational rule of law that has helped to create uniform standards for acceptable sovereign behavior’,3 having ‘a profound impact not only on the development of public international law but also on the development of national law’.4 In this vein, the focus in this field has been on misconduct by (host) States. On the other hand, investor misconduct is left to domestic law and domestic courts, in large part due to notions of State sovereignty, non-interference and territoriality.5 The...