James Crawford AC SC FBA

ICSID Review, Vol. 37, No. 1-2 (2022), pp.
1–12
doi: https://doi.org/10.1093/icsidreview/siab042
Published Advance Access 26 May 2022 WINTER/SPRING 2022
SPECIAL ISSUE ON
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20TH ANNIVERSARY OF ARSIWA
James Crawford AC SC FBA
(1948–2021): The General Law of State
Responsibility and the Specific Case of
Investment Claims
Campbell McLachlan1
It was characteristic of the generosity of spirit of James Crawford—mentor and

friend—that, when we wrote last year to ask him whether he would serve as guest
editor of this special issue of the Review, he immediately accepted. His passing on 31
May 2021 is a huge loss on a personal level, as well as for the discipline of public inter-
national law, a field to which he made an immeasurable contribution over the course
of his life in every dimension: as a scholar and teacher; arbitrator and judge; and as
law reformer. Professor Freya Baetens has now kindly completed the introductory
essay for this issue that she and James co-authored. It falls to me in this preface to
say a word about James Crawford’s personal contribution to the development of the
general international law of State responsibility and its relation to the special case of
investment claims.
This is no easy task. Crawford was himself reticent about his own role as the last
Special Rapporteur (1997–2001) for the International Law Commission (ILC/the
Commission) on the Responsibility of States for Internationally Wrongful Acts, lead-
ing to the adoption of draft Articles in 2001 (ARSIWA/the Articles). The record is
replete with evidence of his contribution: as author of four reports as Special Rap-
porteur;2 in the Official Commentaries;3 and subsequently as author of both an
1
Professor Campbell McLachlan QC, Victoria University of Wellington, New Zealand, Joint Editor-in-Chief. Email:
campbell.mclachlan@vuw.ac.nz.
2
First Report on State Responsibility, ILC YB 1998, vol II(1), 1; Second Report on State Responsibility, ILC YB
1999, vol II(1), 3; Third Report on State Responsibility, ILC YB 2000, vol II(1), 3; Fourth Report on State Responsibility,
ILC YB 2001, vol II(1), 1.
3
ILC, ‘Draft Articles on the Responsibility of States for Internationally Wrongful Acts with Commentaries’, UN
GAOR 56th Session Supp 10, ch 4, UN Doc A/56/10 (2001) (ARSIWA).
© The Author(s) 2021. Published by Oxford University Press on behalf of ICSID. All rights reserved.
For permissions, please e-mail: journals.permissions@oup.com
2 ICSID Review VOL. 37 1-2
introductory text and a detailed monograph;4 an edited collection;5 and several arti-
cles on the topic.6 Yet the Articles were, on any view, a collective enterprise, reflecting
many voices, both within the Commission and of States. Nevertheless, there is rea-
son to accord particular credit to James for their successful completion and, in turn,
for the influence that they have had subsequently in the practice of States and in the
decisions of international courts and tribunals. There is also reason to consider that,
among all of his many contributions, the conclusion of ARSIWA stands as his most
enduring achievement.
This preface explores the basis for this claim. It does so against the background of
the specific focus of this Review, namely the resolution of investment claims. Invest-
ment claims are not the principal focus of the general law of State responsibility
mapped in ARSIWA. On the contrary, there were good reasons in the framing of
ARSIWA to distinguish this special field from the general relations of States inter se
arising from breaches of international law. Yet, as every contribution to the present
issue bears testament, investment law is one field in which ARSIWA has had an
outsize influence.
To explore this apparent paradox, and at the same time to sketch James Crawford’s
own influence, I proceed in the following five steps. First, I indicate the stage that
the codification of the international law of State responsibility had reached prior to
Crawford’s appointment as Special Rapporteur in 1997. Next, I present a perspective
on the particular qualities that James brought to his work for the ILC. I seek to explain
how these qualities enabled him to guide the Commission’s final phase of work on
State responsibility. Third, I offer an overview of the structure and utility of ARSIWA
as it relates to the specific context of investment claims, so that we can then consider
the manner in which Crawford continued to guide the application of the general
law in the specific field of investment claims, through his work as arbitrator and as
scholar. This enables me to offer some conclusions as to the ongoing significance of
the interplay between ARSIWA and investment claims, between the general law and
the specific case.
I. THE INTERNATIONAL LAW OF STATE

RESPONSIBILITY AS A CODIFICATION ENTERPRISE
The ILC identified State responsibility as one of its provisional list of topics for
codification at its first session in 1949,7 yet initial progress was very slow. The Com-
mission began its work on the topic in 1955 with the appointment of Francisco García
Amador (Cuba) as the First Rapporteur. García Amador produced no fewer than six
reports between 1956 and 1961, yet they were barely discussed in the Commission
4
James Crawford, The ILC’s Articles on State Responsibility: Introduction, Text and Commentaries (CUP 2002); J
Crawford, State Responsibility: The General Part (CUP 2013).
5
James Crawford, Alain Pellet, Simon Olleson and Kate Parlett (eds), The Law of International Responsibility (OUP
2010).
6
Notably (for present purposes): James Crawford, ‘The ILC’s Articles on Responsibility of States for Internationally
Wrongful Acts: A Retrospect’ (2002) 96 AJIL 874; James Crawford, ‘Investment Arbitration and the ILC Articles on
State Responsibility’ (2010) 25 ICSID Rev—FILJ 127.
7
ILC YB 1949 3, 49–50.
Editor’s Preface 3
and had little influence on the subsequent development of the Articles.8 The reason
why this was so is significant for present purposes.
The First Rapporteur limited his study to ‘Responsibility of the State for injuries
caused in its territory to the person or property of aliens’. This topic by no means
sought to cover the whole field of the responsibility of States for breaches of inter-
national law. Instead, it focused on one particular substantive area. But the topic
that García Amador had selected was one that had bedevilled previous attempts at
codification, notably at the League of Nations Codification Conference in 1930,9
precisely because of the widely divergent political views of States on the level of pro-
tection to be accorded under international law to the person and property of aliens.
It will immediately be noticed that the latter concern is the subject of the field that
today we would describe as international investment law. García Amador’s propos-
als, though (or perhaps because of) being grounded in the nineteenth- and early
twentieth-century practice of international arbitral tribunals, found no more favour
with newly independent States in the post-war era than they had been accorded by
Latin American States at the Codification Conference in 1930.
It was only when its Second Rapporteur, Roberto Ago, appointed in 1969, dis-
tanced himself from this approach, that the Commission was able to make progress.
The new method that Ago adopted was to develop a distinction between primary
and secondary rules. The primary rules that bind States might be many and various;
but the function of the law of State responsibility was constant. It was to define the
legal consequences that flow from the breach of such an obligation, howsoever aris-
ing. This fundamental point of departure is enshrined in article 1 of ARSIWA, which
has remained unchanged since Ago’s first formulation of it: ‘Every internationally
wrongful act of a State entails the international responsibility of that State’. This fun-
damental distinction between the primary rules of international law and secondary
rules, with State responsibility lodged firmly in the latter category, has been described
by Alain Pellet as ‘the Ago revolution’. That basic premise enabled the Commission
to advance its work on State responsibility without becoming mired in debates on
the content of primary rules on which political consensus was improbable. In short,
progress could be made precisely by excluding consideration of the substance of inter-
national investment law (or indeed any other substantive field of international law)
from the project.
Still, the Commission’s work proceeded slowly. By 1981, Ago had presented eight
reports and the Commission had adopted 35 articles on Part One of his proposed
programme of work. Work then continued under Willem Riphagen and then Gae-
tano Arangio-Ruiz, adding a working text of Parts Two and Three, and enabling
the Commission to adopt a text with commentaries on first reading in 1996. But
many issues remained either under-developed or deeply controversial, not least the
question of the criminal responsibility of States, a fully developed set of remedies for
breach, and the role of countermeasures. Yet the Commission then resolved in 1997
to complete its work on State responsibility by the end of the quinquennium, ie by
2001. It appointed James Crawford as the fifth Special Rapporteur with a mandate
to achieve that objective. This is exactly what he did.
8
Daniel Müller, ‘The Work of García Amador on State Responsibility for Injury Caused to Aliens’ in Crawford and
others (n 5) ch 8.
9
Clémentine Bories, ‘The Hague Conference of 1930’ ibid ch 7.
No doubt the timing was significant. With hindsight, the 1990s presented a win-
dow of optimism and opportunity in public international law. The end of the Cold
War era made possible many projects that might otherwise have seemed impossible
or utopian. The creation of the International Criminal Court by the Rome Statute
in 2001 is emblematic of this spirit. James Crawford also played a foundational role
there, as chair of the ILC Committee on a Draft Statute for the Court.10 Yet the suc-
cessful adoption of ARSIWA cannot be explained by temporal circumstances alone.
It is, after all, concerned with all relations between States, not with any particular
project. Its successful conclusion called for extraordinary talents in law reform. It is
here that we must turn to consider the particular skills that Crawford brought to the
task.
II. JAMES CRAWFORD AND THE PROCESS OF LAW

REFORM
James Crawford’s reputation today rests on his work in public international law. In
addition to his work on State responsibility discussed here, his major scholarly con-
tributions include his great work The Creation of States in International Law,11 his
General Course at The Hague Academy12 and his successive editions of Brownlie’s
Principles of Public International Law.13 These works demonstrate, if demonstration
be needed, his mastery of the field. But this alone would not suffice to explain his
successful tenure as Special Rapporteur.
Alain Pellet, a member of the Commission during this period, comments that
‘Crawford’s influence was clearly crucial’.14 He attributes this both to Crawford’s
energy and to his ‘Anglo Saxon pragmatism’ in a project that, up to that point, had
been driven by lawyers with a civil law background.15
Here I argue that the special qualities that Crawford brought to the task were not
limited to a particular legal tradition. From the outset of his work, he showed equal
understanding of, and sympathy for, concepts in the existing draft that had been
inspired by civil law. In particular, it was his special genius as a law reformer that
marked his tenure as Special Rapporteur. This was a skill that he had honed in a
municipal context at an earlier stage in his career. It was not a skill specific to the
common law or to Anglo-Saxon sensibilities. Rather, it was specific to the modalities
of successful law reform.
From 1982 to 1984, Crawford had served as a Commissioner of the Australian
Law Reform Commission. In that time, he was Commissioner in charge of three
references: on foreign State immunity;16 on civil admiralty jurisdiction;17 and on
the recognition of Aboriginal customary laws.18 His report on foreign State immu-
nity stands as the most complete and coherent explanation of the rationale for the
10
ILC YB 1993, vol II(2), 100; ILC YB 1994, vol II(2), 26.
11
James Crawford, The Creation of States in International Law (2nd edn, OUP 2006).
12
James Crawford, Chance, Order, Change: The Course of International Law (Hague Academy 2014), also published in
(2013) 365 Recueil des Cours.
13
Most recently, James Crawford, Brownlie’s Principles of Public International Law (9th edn, OUP 2019).
14
Alain Pellet, ‘The ILC’s Articles on State Responsibility for Internationally Wrongful Acts and Related Texts’ in
Crawford and others (n 5) ch 9, 83.
15
ibid.
16
Australian Law Reform Commission, Report 24, Foreign State Immunity (1984).
17
Australian Law Reform Commission, Report 33, Civil Admiralty Jurisdiction (1986).
18
Australian Law Reform Commission, Report 31, The Recognition of Aboriginal Customary Laws (3 vols, 1986).
adoption of national legislation to enshrine the restrictive doctrine of immunity.19

Both this report and the report on civil admiralty jurisdiction led to the adoption of
national legislation in Australia implementing his recommendations, which were pre-
sented in the form of a draft Bill together with full commentaries.20 This in itself is
extraordinary, given the difficulties encountered by law reform commissions in many
countries in securing parliamentary attention for their proposals.
The case of the third reference on the recognition of Aboriginal customary laws
is particularly instructive. Crawford took up a reference that had languished in the
Commission for five years.21 He approached the task without an a priori conception
of the nature of the issues or of the potential solutions. Instead, he consulted widely
among Aboriginal communities and more generally. He prepared a report that exam-
ined the issues from a functional perspective: looking to see where the real problems
lay in the interaction between customary law and the law of the State, and proposing
specific solutions. The Report was both practical and far-sighted. It did not result
in legislation but has had a more enduring life by offering a new approach to legal
relations between indigenous communities and the State.22
These qualities were evident from the outset of Crawford’s work at the ILC on
State responsibility. Both in his First Report and in his comments at the fiftieth ses-
sion where the Report was discussed, Crawford struck a fine balance. He adopted
and endorsed the best concepts from the ILC’s earlier work, notably the key operative
distinction between primary and secondary rules.23 In subsequent comments, Craw-
ford accepted that this distinction is ‘a functional one, related to the development of
international law rather than to any logical necessity’.24 At the same time, he strongly
defended the proposition that State responsibility should not concern itself with pri-
mary obligations, since ‘[i]t is not the function of the law of state responsibility to tell
states what obligations they may have’.25
Where no consensus had previously been found, as for example on the notion of
State crimes, he presented the full range of possible alternatives for debate,26 while
reminding members that the Commission had attached priority to the conclusion
of the draft Articles by 2001. In its interim conclusions, the Commission agreed to
refer to a Working Group consideration of ‘whether the systematic development in
the draft articles of key notions such as obligations (erga omnes), peremptory norms
(jus cogens) and a possible category of the most serious breaches of international obli-
gation could be sufficient to resolve the issues raised by article 19 [the draft article
on state crimes]’.27 The potential solution to what had been an intractable prob-
lem was already visible by this point. It would subsequently take shape in Part Two,
19
The Report was described by the reviewer for the American Journal of International Law as ‘an exceptionally cogent
overview of the field:’ H Scott Fairley (1985) 79 AJIL 1100, 1102.
20
Foreign States Immunities Act 1985 (Cth); Admiralty Act 1988 (Cth).
21
The Commission had received the reference on 9 February 1977. Previous Commissioners in Charge were Hon
Justice MD Kirby (1977–78) and Mr BM Debelle QC (1978–81).
22
Campbell McLachlan ‘The Recognition of Aboriginal Customary Law: Pluralism beyond the Colonial Paradigm’
(1988) 37 ICLQ 368.
23
First Report (n 2) paras 12–18; ILC YB 1998, vol II(2), 62, para 220.
24
Crawford, ‘ILC’s Articles on Responsibility of States for Internationally Wrongful Acts’ (n 6) 879 (emphasis added).
25
ibid 878.
26
First Report (n 2) ch I; ILC YB 1998, vol II(2), 64–77.
27
ILC YB 1998, vol II(2), 77, para 331.
Chapter Three on serious breaches of obligations under peremptory norms of general

international law.28
Crawford stressed the importance of the interplay between the approach adopted
in the Commission and its consultation of States as to their views. An early passage
signalling this approach is instructive:
The Commission should request the views of Governments on all questions throughout
the exercise and take careful account of those views … However, while taking account of
Governments’ views, the Commission must at the same time reach its own conclusions,
if possible by consensus, as to what course should be taken. That conclusion should be
submitted as a provisional view to the Sixth Committee, and the Commission should listen
very carefully to the reactions thereto.29
As the Commission’s work progressed, Crawford’s influence was most clearly seen
in the parts of the first reading draft that had received comparatively less attention
in earlier work, notably Part Two on content 30 and Part Three on implementation.31
He developed and clarified the remedies for breach as the legal consequences of an
internationally wrongful act,32 including the various forms of reparation.33 In Part
Three, he separated the invocation of responsibility by the injured State from the
(more limited) instances in which States other than the injured State are entitled to
invoke responsibility.34 Pellet credits this as ‘one of Crawford’s great achievements’.35
Finally, with the assistance of a Working Group, he piloted through the adoption of
Part Three Chapter Two on countermeasures, an issue on which both Commission
members and States had been deeply divided.
In the end, the UN General Assembly, by resolution 56/83 of 12 December 2001,
adopted without a vote, took note of the Articles, annexing the text to the resolution
and recommending them to the attention of governments.36 Though the resolution
went on to state that this was without prejudice to the question of their future adop-
tion, it has become clear over time, as Crawford himself wished,37 that the Articles
will have more impact without being adopted as a convention, without being exposed
to the risk that the fragile balance thus achieved would be disrupted in the course of
an international conference of States.
The General Assembly’s significant endorsement of ARSIWA (with hardly any
dissenting voices) may be explained in part by the close consultation of States
throughout the revisions leading to the second reading, a process the importance
of which Crawford had signalled at the outset of his tenure as Special Rapporteur.
As he relates, in a contribution to a symposium written shortly after the adoption of
ARSIWA, there were several hundred comments by States in the Sixth Committee,
and the reactions of States significantly shaped both the form of some of the most
28
ARSIWA (n 3) arts 40–41; and see also, as to the invocation of responsibility by a State other than the injured State
where ‘[t]he obligation is owed to the international community as a whole’: art 48(1)(b).
29
ILC YB 1998, vol II(2), 64, para 238.
30
Third Report (n 2).
31
Fourth Report (n 2).
32
Part Two, Chapter I.
33
Part Two, Chapter II.
34
Art 48.
35
Pellet (n 14) 84.
36
UNGA Res 56/83 (12 December 2001).
37
Fourth Report (n 2) 7, para 26.
controversial articles as well as consolidating support for the approach proposed on

other aspects.38
III. THE SPECIFIC CASE OF INVESTMENT CLAIMS
How, then, do the Articles respond to the specific context of investment claims? As
has been seen, it was only possible to make progress by freeing the law of State respon-
sibility from the political controversy engendered by the preoccupation of the First
Rapporteur with the protection of aliens and their property. Nor was there any reason
to suppose that the position would be any different by the time Crawford took on the
role of Special Rapporteur. A draft Multilateral Agreement on Investment, proposed
by the OECD in 1995, was withdrawn amid considerable dissent and acrimony in
1998.39
Specific references to investment treaties and the emerging jurisprudence of invest-
ment tribunals are few and far between in Crawford’s four Reports.40 Investment
claims are equally sparsely treated in the ILC Official Commentaries on ARSIWA,
and then only in contexts that serve largely to exclude or distinguish their special
character from the general law.41
Crawford himself pointed out that only Part One of ARSIWA has general scope,
in the sense that it deals with the general principles governing the internationally
wrongful act of a State and, as such, is applicable to general questions surrounding the
breach of an international obligation contained in an investment treaty. By contrast,
Part Three is concerned only with the invocation of State responsibility by other
States. As such, it can have no application per se to the claim of an investor.42
In any event, the whole of ARSIWA is qualified by article 55 on lex specialis, which
provides that ‘[t]hese articles do not apply where and to the extent that the conditions
for the existence of an internationally wrongful act or the content or implementation
of the international responsibility of a State are governed by special rules of interna-
tional law’. This provision has a special salience in the case of investment treaties, to
the extent that such treaties contain their own specific rules on responsibility or the
consequences of breach. The resulting position has led Zachary Douglas, for exam-
ple, to claim that the investor-State regime is better conceptualized as a ‘subsystem’
of State responsibility.43
Sitting somewhat in the middle is Part Two on remedies. Pursuant to article 33(1),
this Part is expressly directed towards the obligations owed by a State to other States
or to the international community as a whole. Nevertheless, article 33(2) provides
38
Crawford, ‘ILC’s Articles on Responsibility of States for Internationally Wrongful Acts’ (n 6) 875.
39
Muthucumaraswamy Sornarajah, The International Law on Foreign Investment (5th edn, CUP 2021) ch 6; Campbell
McLachlan, Laurence Shore and Matthew Weiniger, International Investment Arbitration: Substantive Principles (2nd edn,
OUP 2017) paras 7.73 - 7.78.
40
References to investment (mostly in footnotes) are found in: First Report (n 2) para 172 (attribution); Second
Report (n 2) para 131 (complex acts), para 146 (time of breach), para 153 (territory of the state), para 263 (exclusion of
force majeure), para 285 (doctrine of necessity); Third Report (n 2) para 7 (interest), para 143 (restitution), para 156(c)
(compensation).
41
ARISWA (n 3) art 20, commentary para 10 (role of consent by investors in waiver of rules of diplomatic protec-
tion); art 23, commentary para 9 (exclusion of force majeure); art 33(2), comentary para 4 (proviso to Part Two for
rights accruing to persons other than a State); art 36, commentary para 6 (jurisdiction of ICSID tribunals to award
compensation); paras 21–22 (fair market valuation); art 52, commentary para 8 (exclusion of all forms of invocation of
responsibility by the State of nationality where investment dispute submitted to arbitration).
42
Crawford ‘Investment Arbitration and the ILC Articles on State Responsibility’ (n 6) 129–31.
43
Zachary Douglas in Crawford and others (n 5) ch 54.1.
that ‘[t]his Part is without prejudice to any right, arising from the international
responsibility of a State, which may accrue directly to any person or entity other
than a State’. This paragraph appears to be merely a savings clause. However, as
Crawford observed, writing after the adoption of ARSIWA:
what Article 33 clearly shows is that the secondary obligations arising from a breach may be
owed directly to the beneficiary of the obligation, in this case the investor, who effectively
opts in to the situation as a secondary right holder by commencing arbitral proceedings
under the treaty. A new legal relation, directly between the investor and the responsible
state, is thereby formed, if it did not already exist.44
The Articles may not directly regulate the obligations flowing from a breach in
such a situation, such that the remedies provided in Part Two can be uncritically
applied in investment arbitration without consideration of whether they state princi-
ples of law that are properly applicable in this specific context. Nevertheless, on some
issues, such as compensation (article 36), ICSID tribunals have developed a signifi-
cant practice. As the Official Commentaries themselves acknowledge, ‘[t]he rules and
principles developed by these bodies in assessing compensation can be seen as mani-
festations of the general principle stated in article 36’.45 The same may be said of the
provisions closely linked to the assessment of compensation as a form of reparation,
such as interest (article 38) and contribution (article 39).
Taken together, then, the combined effect of articles 33(2) and 55 is that the gen-
eral law of State responsibility cannot be applied uncritically in investment claims,
either where the investment treaty itself makes specific and different provision for a
matter governed by ARSIWA or because the Articles do not address the claim of a
person other than a State. The Articles have their most direct application to invest-
ment claims on the topics addressed by Part One: especially attribution (Chapter II),
breach (Chapter III) and circumstances precluding wrongfulness (Chapter V). The
provisions of Part Two on remedies may also be relevant where they state a general
principle applicable to investment claims. More generally, they provide the context
of inter-State relations within which investment claims that are founded upon a treaty
take place.
IV. SUBSEQUENT DEVELOPMENT

Once adopted, ARSIWA has been applied in the practice of international courts and
tribunals—including in the investment context—to an extent that surprised and sur-
passed the expectations of the Commission, which ‘did not anticipate that the Articles
would be used to the extent that they have been’.46 This process has only accelerated
in the last decade. It is the purpose of this Special Issue to take stock of the use of
the Articles in the investment context, both in jurisprudence and doctrine.
This preface is limited to consideration of the contribution of James Crawford him-
self on the interface between the Articles and investment claims. This may be seen in
particular in the decisions in which he participated as a member of ad hoc annulment
44
45
ARSIWA (n 3) art 36, commentary para 6.
46
Crawford ‘Investment Arbitration and the ILC Articles on State Responsibility’ (n 6) 128.
committees constituted under article 52 of the ICSID Convention and in his schol-
arly writings. Here it is possible only to make a selection in order to illustrate some
more general themes and preoccupations. Reference to the decisions to which he con-
tributed gives an indication of the extent and limits to which he considered ARSIWA
to provide relevant rules that are applicable in the specific context of investment dis-
putes. His academic writing locates the contribution of investment jurisprudence in
the wider development of the general international law of State responsibility.
The role that the Articles might be expected to play in investment claims, and
the limits to that role, as conceived by Crawford himself, may be seen in a trio of
important annulment decisions to which he was party, delivered relatively soon after
the adoption of the Articles: Vivendi (2002),47 MTD v Chile (2007)48 and CMS v
Argentina (2007).49
In Vivendi, the ad hoc Committee annulled the award of the tribunal on the
ground that it had manifestly exceeded its powers by not examining the merits of
the claimants’ claims. The Committee’s point of departure was the fundamental
distinction in article 3 ARSIWA between claims under international law and claims
under municipal law. ‘In accordance with this general principle (which is undoubt-
edly declaratory of general international law)’, the Committee held, ‘whether there
has been a breach of the BIT and whether there has been a breach of contract are
different questions. Each of these claims will be determined by reference to its own
proper or applicable law—-in the case of the BIT, by international law; in the case of
the Concession Contract, by the proper law of the contract.’50 It was the tribunal’s
failure to observe this fundamental distinction, holding instead that the claim must
be dismissed on the basis that it should have been dealt with first by a national court,
that amounted to an annullable error. This finding, which served to distinguish the
function of the investment treaty tribunal from fora for contractual claims, has been
widely followed in subsequent awards.51
Second, in MTD v Chile, one of the grounds on which the respondent State chal-
lenged the award was that the tribunal had failed to state its reasons for a 50:50
apportionment of responsibility between the respondent and the claimant for the
claimant’s loss. In this context, the ad hoc Committee considered the relevance of
article 39. This provision, which is in Part Two of ARSIWA on reparation, deals with
contributory fault. The Committee noted that the respondent had been right not
to challenge the tribunal’s decision on contribution as an excess of powers. It cited
article 39, holding: ‘Part II of the ILC Articles, in which article 39 is located, is con-
cerned with claims between States, though it includes claims brought on behalf of
individuals, e.g. within the framework of diplomatic protection. There is no reason not
to apply the same principle of contribution to claims for breach of treaty brought by individu-
als.’52 The Committee found that the tribunal had committed no annullable error in
47
Compañía de Aguas del Aconquija and Vivendi Universal v Argentine Republic, ICSID Case No ARB/97/3, Decision
on Annulment (3 July 2002) 6 ICSID Rep 340, IIC 70 (Yves Fortier, President; James Crawford; José Carlos Fernández
Rozas).
48
MTD Equity Sdn Bhd MTD Chile SA v Republic of Chile, ICSID Case No ARB/01/7, Decision on Annulment (21
March 2007) 13 ICSID Rep 500, IIC 177 (Gilbert Guillaume, President; James Crawford; Sara Ordoñez Noriega).
49
CMS Gas Transmission Company v Argentine Republic, ICSID Case No ARB/01/8, Decision on Annulment (25
September 2007), 14 ICSID Rep 251, IIC 303 (Gilbert Guillaume, President; James Crawford; Nabil Elaraby).
50
Vivendi v Argentina (n 47) para 96.
51
For full citation of authorities, see McLachlan and others (n 39) para 4.93.
52
MTD v Chile (n 48) para 99 (emphasis added).
its reasoning on apportionment of fault, finding that a tribunal in such a situation had
a ‘margin of estimation’ and that ‘it is not unusual for the loss to be shared equally’.53
In this decision, the Committee moved beyond Part One of the Articles to con-
sider the potential relevance of the provisions of Part Two to the determination of
compensation by investment tribunals, finding article 39 to state a principle that is
applicable in this context.
Third, in CMS v Argentina, the Committee addressed the controversial question
of the relation between a specific clause in the BIT and article 25 of ARSIWA, which
sets forth the circumstances in which necessity may be invoked to preclude a finding
of wrongfulness. This issue had given rise to divergent awards.54 In CMS itself, the
tribunal had considered that the respondent’s defence raised a single issue, which it
addressed by reference to article 25. The ad hoc Committee criticized this approach.
It invoked the distinction between primary and secondary rules, pointing out that the
provision in the BIT formed part of a primary rule, whereas article 25 is a secondary
rule. The consequence, in its view, was that:
the Tribunal would have been under an obligation to consider first whether there had been
any breach of the BIT and whether such a breach was excluded by Article XI. Only if it
concluded that there was conduct not in conformity with the treaty would it have had to
consider whether Argentina’s responsibility could be precluded in whole or in part under
customary international law.55
The Committee ultimately decided, however, that the tribunal’s error in this regard
did not warrant annulment.
The Committee’s decision in CMS did not conclude the controversy over the
proper scope and application of article 25 ARSIWA in investment cases, a ques-
tion comprehensively examined by Federica Paddeu and Michael Waibel, in this
issue.56 But it did clarify a basic point of method—the distinction between primary
and secondary rules—that is fundamental to the whole approach of the Articles and
it demonstrated the practical importance of this distinction in investment claims.
Crawford’s consideration of the impact of investment claims on the general law
of State responsibility may also be seen in his citation of relevant investment treaty
awards in his academic writings. These appear in his successive editions of Brownlie.57
They receive their most detailed treatment in his treatise State Responsibility: The
General Part.58 In that work, the greatest impact of investment awards may be seen
in Crawford’s discussion of the rules of attribution in Part One.59 In that context,
the ARSIWA rules are directly applicable to investment claims and the decisions of
investment arbitral tribunals have done much to illuminate the application of articles
4–11 in the practical context in which questions of attribution arise in mixed public–
private economies.60
53
ibid, para 101.
54
For full citation of authorities, see Campbell McLachlan, ‘Investment Treaties and General International Law’
(2008) 57 ICLQ 361, 385–91.
55
CMS v Argentina (n 49) para 134.
56
Federica Paddeu and Michael Waibel, ‘Necessity 20 Years on: The Limits of Article 25’.
57
Crawford (n 13) ch 25 nn 28, 46, 145, 158, 166 and 175; ch 26 nn 25, 49 and 156.
58
Crawford, State Responsibility (n 4).
59
ibid pt II.
60
See also Mr Kristian Almås and Mr Geir Almås v The Republic of Poland, PCA Case No 2015-13, UNCITRAL,
Award (27 June 2016) (James Crawford, President; Ola Mestad; August Reinisch) paras 207–72; and, in this issue,
Carlos de Stefano ‘Attribution of Conduct to a State’.
V. CONCLUSION
The contributions to this Special Issue bear witness to the considerable influence that
ARSIWA has had on decision-making by investment tribunals over the first 20 years
of the existence of a final text. This impact could not necessarily have been antici-
pated. The Articles sit outside the investment treaties that form the primary frame of
reference in investment cases. They are intended for use in a wide range of contexts,
and, in important respects, are framed in ways that speak to inter-State claims and
do not directly address investor-State claims. Yet reference to them in awards is very
widespread. As Esmé Shirlow and Kabir Duggal show in their comprehensive review
of the case law in this issue, the references to ARSIWA in investment awards continue
to grow across a wide range of its Articles.
What factors explain this influence? It is impossible to be more than impression-
istic in concluding a general comment of this kind, but two factors seem especially
salient. The first is the practical need for reference to a set of secondary rules on State
responsibility in this context. Investment treaties typically contain primary rules on
the treatment of the property of aliens, and make provision for the settlement of
disputes between investors and States. They much less often contain their own par-
ticular secondary rules dealing with the responsibility of a State for the consequences
of a breach of such primary rules. Nor are such matters dealt with in the ICSID
Convention. In other words, there is often only limited overlap between the content
of an investment treaty and the matters addressed by the law of State responsibility.
Yet, in the myriad of factual contexts thrown up by investment cases, tribunals must
determine whether the conduct complained of by the claimant is attributable to the
respondent State and whether that conduct may be excused in some way. In cases
in which the tribunal finds breach of a treaty obligation, the consequences of that
breach must be addressed. The tribunal may of course, and frequently will, consider
general principles of law developed in the older jurisprudence of claims tribunals. But
those decisions had to treat State responsibility as a question of general principle.61
Moreover, as has been seen, those cases were decided at a time when the underlying
primary rules on the property of aliens were deeply contested. By contrast, ARSIWA
offers an elaborate distillation of the secondary principles of State responsibility as
customary rules. The process by which the Articles were developed—in particular
the close consultation of States throughout their framing and adoption—gives a high
degree of confidence that the rules as formulated in the Articles are generally accept-
able. This does not mean that the Articles can be uncritically applied to investment
claims without careful consideration of whether they are in fact relevant in that spe-
cific context. But it does serve to explain the attraction of ARSIWA, both to the
disputing parties and their counsel and to arbitral tribunals.
There is, however, another factor that cannot be underestimated. While the
preparation of the Articles reflects the scholarly work in particular of four special
rapporteurs and the collective wisdom of the members of the ILC, it fell to James
Crawford to bring that work together into a single coherent text that would be of
practical utility and would command the acceptance of both the Commission and
the international community. In this task, he richly succeeded. The result is to add a
61
Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (CUP 1953, repr 2006) esp pt
three.
coherent set of principles on the consequences of a State’s breach of any international

obligation.
Crawford himself was acutely aware of the relative sense in which it could be
claimed that the Articles ‘presume that international law is a unified body of law’.62
The Articles do not claim to address the possibility of conflict of obligations and they
accept that States may choose to develop special regimes, including special regimes of
responsibility. But he nevertheless insisted that ‘there cannot be, at the international
level, any truly self-contained regime, hermetically sealed against bad weather’.63 The
Articles, infused as they are with James Crawford’s genius for law reform, provide
the international community with an invaluable tool of general law, which facilitates
the just and reasoned disposition of all manner of disputes involving the conduct of
States, including investment claims. We dedicate this Special Issue to his memory.
62
63
ibid 880.

James Crawford AC SC FBA

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James Crawford AC SC FBA

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ICSID Review, Vol. 37, No. 1-2 (2022), pp.

It was characteristic of the generosity of spirit of James Crawford—mentor and

I. THE INTERNATIONAL LAW OF STATE

II. JAMES CRAWFORD AND THE PROCESS OF LAW

adoption of national legislation to enshrine the restrictive doctrine of immunity.19

Chapter Three on serious breaches of obligations under peremptory norms of general

controversial articles as well as consolidating support for the approach proposed on

III. THE SPECIFIC CASE OF INVESTMENT CLAIMS

IV. SUBSEQUENT DEVELOPMENT

coherent set of principles on the consequences of a State’s breach of any international

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