State Responsibility and Corruption in the Context of Investor-State Disputes

Abstract

The question of State responsibility for corruption in the context of investor-State disputes has been little examined by tribunals.3 This gap in the jurisprudence may simply reflect the procedural context in which corruption allegations have generally arisen: rarely as allegations by the investor to ground its claims, and instead most often as an objection by the State to the jurisdiction of the tribunal or the admissibility of the investor’s claims. In this posture, corruption is presented as a threshold issue, as the respondent argues that the tribunal should dismiss all the investor’s claims without considering their merits. On one view, therefore, the comparative lack of attention to State responsibility in this context is unremarkable. If corruption is typically raised as a defence under special rules governing the admissibility of claims in the context of investor-State arbitration, how relevant are concepts of general State responsibility, or the International Law Commission’s...