The 2001 ILC Articles on State Responsibility—An Annotated Bibliography

ICSID Review, Vol. 37, No. 1-2 (2022), pp.
565–591
doi: https://doi.org/10.1093/icsidreview/siab039
Published Advance Access 18 March 2022 WINTER/SPRING 2022
SPECIAL ISSUE ON
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20TH ANNIVERSARY OF ARSIWA
The 2001 ILC Articles on State
Responsibility—An Annotated Bibliography
Kiran Nasir Gore and Gloria M Alvarez 1
Abstract—In this Special Issue, commemorating the twentieth anniversary of the Inter-
national Law Commission’s Draft Articles on the Responsibility of States for Internation-
ally Wrongful Acts, as adopted in August 2001 (‘ILC Articles’ or ‘ARSIWA’), we curate
a bibliography annotating important contributions to scholarship and literature concern-
ing the ILC Articles. It is organized topically, including focus on attribution, elements of
international breach (including acts, omissions, defences and justifications), the State–
individual relationship, State responsibility for judicial acts, various redress doctrines and
contributory fault. Each entry is accompanied by a few comments. This annotated bibli-
ography aims to be useful to practitioners and scholars alike, as it presents a centralized
corpus of relevant literature, reflecting the topics that have captured popular interest,
while also illuminating possible gaps where further scholarly attention is needed.
I. INTRODUCTION
Today the International Law Commission’s Draft Articles on the Responsibility of
States for Internationally Wrongful Acts, as adopted in August 2001 (‘ILC Arti-
cles’ or ‘ARSIWA’) are widely used and accepted as codification of international law.
However, the theory of the law of State responsibility has not always been well devel-
oped, nor well received. The ILC Articles’ inception and preparation were subject
to significant debate, including hundreds of comments received by the ILC during
its consultation processes.2 Even so, the mere existence of the ILC Articles is not
enough for them to gain traction. It is widely recognized that reference to and appli-
cation of the ILC Articles by courts and tribunals is key to unlocking their impact
and lending them legitimacy.3
1
Ms Kiran Nasir Gore is a Professorial Lecturer in Law at The George Washington University Law School, Washing-
ton, DC, USA. She can be reached at kng@gorelaw.com. Dr Gloria M Alvarez is a Mexican-qualified lawyer and Lecturer
at University of Aberdeen, Aberdeen, Scotland, UK. She can be reached at gloria.alvarez@abdn.ac.uk. Together, Kiran
and Gloria are co-associate editors for book reviews at the ICSID Review. With thanks to Luter Atagher, Morgane
Champeaux and Krishan Insan for their contributions to this project while serving as legal interns at ICSID.
2
James Crawford, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’
(2002) 96 AJIL 874, 874–75.
3
See eg Simon Olleson, ‘The Impact of the ILC’s Articles on Responsibility of States for Internation-
ally Wrongful Acts—Preliminary Draft’ (BIICL 2007) <www.biicl.org/files/3107_impactofthearticlesonstate_respon
sibilitypreliminarydraftfinal.pdf> accessed 26 July 2021; and the updated and expanded study: Simon Olle-
son, State Responsibility before International and Domestic Courts: The Impact and Influence of the ILC’s Arti-
cles (OUP 2016); David Caron, ‘The ILC Articles on State Responsibility: The Paradoxical Relationship
between Form and Authority’ (2002) 92 UC Berkeley Public Law and Legal Theory Research Paper Series
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=339540> accessed 28 August 2021. This idea is also reflected
© The Author(s) 2022. Published by Oxford University Press on behalf of ICSID. All rights reserved.
For permissions, please e-mail: journals.permissions@oup.com
566 ICSID Review VOL. 37 1-2
Along these lines, as co-associate editors of the ICSID Review’s book review section,
we recognize that before many ideas are accepted as legitimate, they must be honed,
tested and disseminated. Scholarship, accordingly, holds a special place in the devel-
opment of international law theory and principles. Often such literature paves the
way towards adoption of similar ideas by courts and tribunals, including by tribunals
applying the law to international investment disputes. In a 2010 issue of the ICSID
Review, then-Professor, and later Judge, James Crawford published a quantitative
table that detailed investment arbitration decisions referencing the ILC Articles.4 At
the time, Crawford concluded that references to the ILC Articles have been ‘very
frequent’, but he also found that such references were unevenly distributed—some
articles had been referred to multiple times, while others not at all.5
In this Special Issue, commemorating the ILC Articles’ twentieth anniversary, we
build upon that past work. Elsewhere in this issue, our editorial colleagues update
Crawford’s quantitative assessment, identifying further and more recent decisions of
investment arbitration tribunals referencing the ILC Articles. Here, we curate a bibli-
ography annotating important contributions to scholarship and literature concerning
the ILC Articles. This annotated bibliography is organized topically, including focus
on attribution, elements of international breach (including acts, omissions, defences
and justifications), the State–individual relationship, State responsibility for judicial
acts, various redress doctrines and contributory fault. Each entry is accompanied by
a few comments.
While we aim to be comprehensive, we cannot claim to be exhaustive. We identify
book chapters and academic journal articles that mainly focus on the ILC Articles
and their interaction with investment law, giving emphasis to works generated during
the past 10 years. The fruits of our efforts reflect current times. We, and the research
interns who ably assisted us, are located across three continents and five countries,
with privileges at various research libraries—all of which remained closed during the
Covid-19 public health crisis. We now, more than ever, are proponents of the need
for greater electronic and remote access to research materials. With these caveats,
we hope that this annotated bibliography is useful to practitioners and scholars alike,
as it presents a centralized corpus of relevant literature, reflecting the topics that
have captured popular interest, while also illuminating possible gaps where further
scholarly attention is needed.
II. ANNOTATED BIBLIOGRAPHY

A. General Commentary
Here we profile the most important general commentaries and texts concerning the
ILC Articles, including ones that present an article-by-article analysis. This section
also highlights scholarship concerning the ILC Articles’ general principles (Part One,
in the Commentary to the ILC Articles, which provides, in the context of Article 2(b) on breach, ‘What matters for these
purposes is not simply the existence of a rule but its application in the specific case to the responsible State’. International
Law Commission, ‘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) art 2, commentary para 13.
4
See James Crawford, ‘Investment Arbitration and the ILC Articles on State Responsibility’ (2010) 25 ICSID Rev—
FILJ 127.
5
ibid 131–32.
ARSIWA - Annotated Bibliography 567
Chapter I, Articles 1–3). Unsurprisingly, Crawford, who served as the last rapporteur
of the ILC on the topic, was involved in several of these works.
(i) A/CN.4/SER.A/2001/Add 1 (Part 2), Commission to the General Assembly,
United Nations, ‘Draft Articles on Responsibility of States for Internationally
Wrongful Acts, with Commentaries’ (2001) 2 YILC
This detailed commentary surveys the practice of international courts and tri-
bunals to define and explain the operation of customary and conventional law
to delve into the different conducts and conditions which cause a State to
incur international responsibility. The commentary is divided into four parts
and mirrors the structure of the ILC Articles by offering an article-by-article
analysis.
Part One deals with the requirements for international responsibility to arise,
including the circumstances where specific conduct is attributed to a State which then
acts in breach of international obligations. It also studies the scenarios where State
conduct falls under the responsibility of another State, as well as the circumstances
which may preclude wrongfulness of such acts.
Part Two develops the links between the consequences of a wrongful act and injury;
these links are cessation and reparation (which comprise various forms, such as
restitution, compensation and satisfaction).
Part Three considers the Vienna Convention of the Law of the Treaties (VCLT),
among other instruments, to explain the effects on the implementation of State
responsibility. More concretely, this part unfolds the scenarios where a State claims
international responsibility by another State; and underscores that these claims
should observe procedural fairness including certain evidentiary rules. Part Three
also explains the conditions for the admissibility of the claim and the loss of the right
to invoke it. Lastly, this part elaborates on the conditions to take countermeasures
under the argument that these serve the objective of vindicating rights and restoring
legal relationships. It explains that, when taking countermeasures, proportionality
should be the key guiding principle.
Part Four develops the operational scope of the ILC Articles, including the non-
exhaustive character of the Articles and their residual character against lex specialis
prevalence.
All in all, the commentary offers a comprehensive picture of the underlying prin-
ciples and basic rules of international law concerning the responsibility of States—
subjects of international law—for their internationally wrongful acts and the legal
consequences that should follow therein.
(ii) David Caron, ‘The ILC Articles on State Responsibility: The Paradoxical
Relationship between Form and Authority’ (2002) 96 AJIL 857
In this article, Caron advocates that the ILC Articles are a significant achieve-
ment, and they should be widely used and given effect because of their inherent
integrity and value. He suggests that arbitrators, judges and governments should
constantly question and test the ILC Articles to capitalize on the investment under-
lying their evolution and progressive development. Caron recognizes the value of the
ILC Articles for legal practice, where their application is pervasive among arbitral
decisions and State practice. Caron further explains that the ILC Articles were ‘writ-
ten as though [they] were a treaty’.6 He argues that the ILC Articles should not be
read simplistically. Instead, decision makers should navigate relevant commentaries
and reports to understand the level of consensus underlying each provision.
(iii) James Crawford, ‘The ILC’s Articles on Responsibility of States for
Internationally Wrongful Acts: A Retrospect’ (2002) 96 AJIL 874
This article provides a retrospective analysis of the most important issues addressed
through the ILC Articles. It provides nuanced views on countermeasures by States
and other injured States and discusses the reasons behind the exclusion of punitive
damages from the ILC Articles. It highlights certain provisions that were welcomed
by the international community, such as those on countermeasures, the distinction
between injured and other States, as well as the responsibility of another State for its
conduct, and the support they garner from governments and drafters. In sum, this
article demonstrates that the ILC Articles do not present ‘one-size-fits-all’ rules, but
they have been designed to function as flexible rules.
(iv) James Crawford, The International Law Commission’s Articles on State

Responsibility, Introduction, Text and Commentaries, United Nations (CUP
2002)
This commentary is a key resource on the ILC Articles. It exhaustively provides an
overview of the ILC’s work on the law of State responsibility. It follows the same
article-by-article structure as the ILC Articles and delivers two main outcomes: first,
it surveys important primary documents; second, it offers a thorough narrative on
how the ILC Articles reached their current version.
There are many other reasons as to why this commentary is of unique value. It
offers analytical tables, which trace the evolution of each article to its final adoption,
as well as a secondary table on articles that were proposed but never adopted. Most
importantly, the commentary benefits from the experience of Crawford himself, as
the last rapporteur on the topic, to deliver a cohesive account of the ILC Articles’
scope and content.
(v) James Crawford, ‘Investment Arbitration and the ILC Articles on State
Responsibility (with Appendix)’ (2010) 25 ICSID Rev—FILJ 127
In this article, Crawford offers a doctrinal explanation of the evolutive interaction
between the law of investment protection and State responsibility. He first provides
a historical analysis of the efforts made during the 1950s and 1960s by the ILC
to set out the substantive rules of State responsibility. In doing so, he clarifies the
ILC’s function in the context of a polarized and contested area. He explains that the
ILC’s mandate was not to identify primary obligations of States, but rather to offer
a survey of the conditions under which States can be held responsible for breach of
international obligations, and the associated consequences of such responsibility.
6
David Caron, ‘The ILC Articles on State Responsibility: The Paradoxical Relationship between Form and
Authority’ (2002) 96 AJIL 857, 861.
Crawford recommends that the ILC Articles ‘simply sit as a text to be used in
accordance with the views of tribunals and writers, as appropriate’.7 Yet, the ILC
Articles have been relied upon by international and national courts and tribunals,
with a particular proportion of those cases being investment arbitrations. Given this
usage, Crawford underscores the relevance of the differences between Part One and
Parts Two and Three of the ILC Articles. He explains that tribunals have carefully
attempted to reference the ILC Articles ‘by way of signposting rather than actually
integrating the substance of the Articles into the decision’.8 Most importantly, he
concludes, that application of the ILC Articles continues to reflect disagreement
on core issues regarding necessity, countermeasures and compensation. This article
is also mentioned in our Introduction above for its useful appendix, which chroni-
cles, on an article-by-article basis, the approximately 100 then-existing and publicly
available investment arbitration decisions that referred to the ILC Articles.
(vi) James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (eds), The Law
of International Responsibility (OUP 2010)
Several times in this annotated bibliography we refer to different chapters of this
edited volume, each prepared by prominent practitioners and scholars, and each
providing incisive and comprehensive commentary on State responsibility and inter-
national investment law. Aside from these topical insights, the book is valuable for
the guidance it offers for the entire field, including all aspects of international respon-
sibility, the intersection between the ILC Articles and the ILC’s work in related fields
(eg diplomatic protection, international organizations and liability for harmful activ-
ities not prohibited under international law), as well as the intersection between
international responsibility and other specialized regimes, including human rights
treaties and the World Trade Organization. Usefully, each chapter is accompanied
by a bibliography for further reading.
(vii) Zachary Douglas, ‘The Content of International Responsibility, Other

Specific Regimes of Responsibility: Investment Treaty Arbitration and
ICSID’ in Crawford, Alain Pellet, and Simon Olleson (eds), Law of
International Responsibility (OUP 2010) ch 54.1, 815
This book chapter examines the State-to-State and investor-State arbitration mecha-
nisms established through the ICSID Convention (including its Additional Facility)
and the application of the law on the responsibility of States for international wrongs.
It highlights that the ICSID regime generates certain complexities for the applica-
tion of the law of State responsibility. It also addresses the nexus between the need
to exhaust local remedies, invocation of State responsibility and attribution of acts
performed by a local agency when the investor has pursued its claims directly against
a central government.
7
James Crawford, ‘Investment Arbitration and the ILC Articles on State Responsibility (with Appendix)’ (2010) 25
ICSID Rev—FILJ 127, 128.
8
ibid 132.
(viii) Jürgen Kurtz, ‘The Paradoxical Treatment of the ILC Articles on State
Responsibility in Investor-State Arbitration’ (2010) 25 ICSID Rev—FILJ
200
This article highlights investment treaty arbitration as a ‘porous and open’ area of law
which is influenced by external norms and standards, including the ILC Articles.9
It characterizes the receptivity of investment treaty arbitration to the ILC Articles as
a ‘curious paradox’, where, despite the clear reliance on the ILC Articles to render
arbitration awards, there is little substantive analysis of these norms.10 To illustrate
this thesis, Kurtz first considers the historical and textual origins of the ILC Arti-
cles. He then analyses several investment treaty decisions, UPS v Canada,11 CMS v
Argentina,12 Enron v Argentina13 and Sempra v Argentina,14 which referred to the ILC
Articles but involved limited substantive analysis.
(ix) James Crawford, State Responsibility: The General Part (CUP 2013)
This book analyses the ILC Articles and centres its discussion mainly on the
notion of State responsibility in the context of dispute resolution, judicial settlement
and countermeasures. It uniquely takes a thematic approach to the topic of State
responsibility.
Part I offers a historical analysis of the development of the notion of responsibil-
ity in international law. It guides the reader through early writings on international
responsibility, leading up to the work of the ILC circa 2001. Part I also provides the
methodology behind the drafting of the ILC Articles as we know them today. In doing
so, it explains the codification and modern notions underlying State responsibility,
including the formal requirements to invoke responsibility as well as the admissibility
of these types of claims. Part II of the book focuses on the notion of attribution to the
State. It reviews which organs and entities are, in principle, subjects of attribution
given their respective roles in governmental authority. As such, this part presents
early case law to elucidate examples where certain persons have acted under State
instruction, direction or control; as well as the concept of attribution as it applies to
State-owned entities. Part III reviews the concept of breach of a primary obligation—
which amounts to State responsibility. It breaks down the most important elements
of international breach, including acts and omissions, temporal requirements and
the circumstances precluding wrongfulness. Part IV deals with issues of collective
or ancillary responsibility, as well as secondary responsibility and succession. Part V
discusses the legal effects of a breach; particularly those requiring continued perfor-
mance, cessation and guarantees of non-repetition. Part VI deals with the procedural
aspects of implementation of State responsibility, including which actors are entitled
to claim injury, as well the loss of the right to revoke responsibility. In addition, it
explores who can make claims on behalf of others (ie ideas relating to diplomatic
protection, human rights and investment protection).
9
Jürgen Kurtz, ‘The Paradoxical Treatment of the ILC Articles on State Responsibility in Investor-State Arbitration’
(2010) 25 ICSID Rev—FILJ 200, 200.
10
ibid 201.
11
United Parcel Service of America Inc v Canada, ICSID Case No UNCT/02/1, Award on the Merits (24 May 2007).
12
CMS Gas Transmission Company v Argentine Republic, ICSID Case No ARB/01/8, Award (12 May 2005).
13
Enron Corporation Ponderosa Assets LP v Argentine Republic, ICSID Case No ARB/01/3, Award (22 May 2007).
14
Sempra Energy International v Argentine Republic, ICSID Case No ARB/02/16, Award (28 September 2007).
Throughout, the book discusses the practice of international tribunals, explaining

how international responsibility has been implemented in judicial and extrajudicial
processes, as well as the impacts of multiplicity of parties and proceedings.
B. Attribution
The ILC Articles offer concrete rules for attribution (Part One, Chapter II, Arti-
cles 4–11), which guide the analysis of whether a wrongful act emanates from a
State for purposes of responsibility. These rules have been extensively explored in
scholarship, which in recent years has developed to engage practical and emerging
challenges. These challenges include State-owned enterprises as important actors,
which may serve as ‘organs’ of the State for purposes of incurring responsibility, and
State responsibility in circumstances involving bribery and corruption.
(i) Kaj Hober, ‘State Responsibility and Attribution’ in Peter Muchlinski,

Federico Ortino and Christoph Schreuer (eds), The Oxford Handbook of
International Investment Law (OUP 2008) 549
In this article, Hober highlights the rules for attribution of conduct to States as
perhaps the most important aspect of State responsibility. The article analyses invest-
ment arbitrations where the conduct of a person or a group can be considered an act
of a State under international law, as well as the interaction between attribution and
federal states and how the issue of international responsibility may be allocated to the
central government. In a clear manner, Hober explains that the characterization of
a wrongful act should be based on international law and not under municipal law,
and that such conduct should be attributable to a State organ, including persons or
entities which are empowered to act with governmental authority.
(ii) Paul Michael Blyschak, ‘Arbitrating Overseas Oil and Gas Disputes:
Breaches of Contract Versus Breaches of Treaty’ (2010) 27 J Intl Arb 579
This article focuses on the energy sector to examine the common practice among
energy firms of concluding contracts with parastatal entities entrusted with respon-
sibilities in certain economic areas. Once a dispute arises, it becomes necessary to
determine whether an undertaking was made by an entity with its own separate legal
personality under the law of the host State, or whether such undertaking was struc-
turally or functionally related to the State, and thus may be attributed to the State
itself for the purposes of invoking an umbrella clause. As the article explains, this
question has been considered in several investment cases and the ILC Articles often
guide analysis of whether an obligation can be attributed to the host State. This article
also usefully highlights the legal distinctions between attribution and privity.
(iii) Luigi Condorelli and Claus Kress, ‘The Rules on Attribution: General
Considerations’ in Crawford, Alain Pellet, and Simon Olleson (eds), Law of
International Responsibility (OUP 2010) ch 18, 221
In this book chapter, the authors comprehensively review the rules of attribution in
the context of internationally wrongful acts. They begin by offering a set of notions to
define the term ‘attribution’. This conceptual exercise helps identify whether certain
conditions have been fulfilled (or not) to conclude whether a State has acted in a
particular way. This exercise also clarifies that actions amounting to responsibility
are not made by the State itself in an abstract manner, but rather are carried out
by specific individuals. Moreover, the chapter offers a comprehensive overview of
attribution, covering the topic of international responsibility under the ILC Articles
and its relevance to the international legal system.
(iv) Djamchid Momtaz, ‘Attribution of Conduct to the State: State Organs and
Entities Empowered to Exercise Elements of Governmental Authority’ in
Crawford, Alain Pellet, and Simon Olleson (eds), Law of International
Responsibility (OUP 2010) ch 19.1, 237
This book chapter elaborates on the idea that the State is an abstract entity and its
responsibility resonates from the conduct of State agents and organs. Accordingly,
the chapter analyses the term ‘organ’—as it pertains to the State’s structure and is
subordinate to it—in the context of the codification of international law through the
ILC Articles and related case law. The chapter also deals with ‘de facto organs’, recog-
nizing that States cannot avoid responsibility by merely denying the organ’s de facto
status under domestic law. Interestingly, the chapter addresses State decentraliza-
tion by analysing the elements of governmental authority vested in public territorial
communities and in private institutions exercising sovereign authority.
(v) Václav Mikulka, ‘State Succession and Responsibility’ in Crawford, Alain

Pellet, and Simon Olleson (eds), Law of International Responsibility (OUP
2010) ch 21, 291
This book chapter addresses the challenges of State succession. The ILC Articles
do not provide guidance on the legal relationship between a successor State and its
predecessor State when an international wrongful act was committed either by the
predecessor State or another State against the predecessor State. The chapter crafts
guidance by reviewing earlier practice and doctrine whereby the predecessor State
continues to exist and remains responsible for its wrongful acts either partially or in
its entirety.
(vi) Danielle Morris, ‘Revolutionary Movements and de facto

Governments—Implications of the “Arab Spring” for International Investors’
(2012) 28 Arb Intl 721
This article considers the ILC Articles’ provisions on attribution in the context of the
recent revolutions in Egypt and Libya and the civil war in Syria. These questions can
be exceedingly complex where a government is responsible for the acts of revolution-
aries, or where a revolutionary movement becomes a new government. Under these
circumstances, any investment dispute concerning, for example, concession agree-
ments or other contracts with a State, would require a tribunal to consider attribution
through the lens of revolution and political conditions.
(vii) Jude Antony, ‘Umbrella Clauses Since SGS v. Pakistan and SGS v.
Philippines—A Developing Consensus’ (2013) 29 Arb Intl 607
This article provides a study of all the then-existing and publicly available inter-
national investment decisions addressing umbrella clauses. In the case of umbrella
clause claims where the obligation at issue is a contractual obligation, the under-
lying contract will often include a purportedly exclusive forum selection clause
in favour of a forum in the host State. This means investment tribunals must
determine the effect, if any, the contractual forum selection clause in the under-
lying contract has on its jurisdiction. The 13 cases studied were divided roughly
evenly between those in which arbitral tribunals that were not prepared to
attribute to States the actions of sub-State entities in the context of commer-
cial contracts (seven) and those that were (six). The ILC Articles are relevant
to this analysis to determine whether the State itself entered the contract at
issue.
(viii) Albert Badia, Piercing the Veil of State Enterprises in International

Arbitration (Kluwer 2014)
Badia’s monograph directly engages an increasingly relevant question for the field of
international investment law: whether State attribution encompasses the conduct of
State-owned enterprises, especially when considering the principle of good faith, the
prohibition of the abuse of rights and the rule of equity. Following a comprehensive
study, Badia provocatively concludes that the ILC Articles alone are not enough and
should be supplemented by the doctrine of piercing the corporate veil, which he
proposes is a principle of international law that is applicable to States and private
investors alike.
(ix) Kristen E Boon, ‘Are Control Tests Fit for the Future? The Slippage Problem
in Attribution Doctrines’ (2014) 15 MJIL 48
This article focuses on the types of actors which can bear attribution of inter-
national responsibility due to the acts of others. Boon argues that control is
an essential element in the doctrine of attribution. Boon further claims that
control is an objective test, leading to several problems arising from the ever-
changing nature of international law. Thus, it is necessary to consider a vari-
ety of means to ascertain true attribution, including control thresholds, locating
responsibility within omissions, duty to prevent, due diligence rule and shared
responsibility.
(x) ‘State Responsibility for Corruption: The Attribution Asymmetry’ in Aloysius

Llamzon, Corruption in International Investment Arbitration (OUP 2014)
238
This book chapter studies the investment arbitration cases that have examined
the issue of State responsibility for corruption through the lens of the ILC Arti-
cles with focus on World Duty Free Company v Republic of Kenya.15 The chap-
ter reflects on the implications of attribution for bribery and other corrupt acts.
The chapter asks under what terms corruption can or should be attributable
to a host State and argues that principles of acquiescence may also be consid-
ered to ensure balance in the apportionment of the economic and moral costs of
corruption.
15
World Duty Free Company v Republic of Kenya, ICSID Case No ARB/00/7, Award (4 October 2006).
(xi) James Crawford and Paul Mertenskötter, ‘The Use of the ILC’s Attribution
Rules in Investment Arbitration’ in Meg Kinnear, Geraldine Fischer, Jara
Mínguez Almeida, Luisa Fernanda Torres and Mairée Uran Bidegain (eds),
Building International Investment Law: The First 50 Years of ICSID
(Kluwer 2015) 27
In this book chapter, the authors review the ILC Articles’ attribution rules and their
guidance for vexing questions before ICSID tribunals, including the role of national
law in determining whether an entity is an ‘organ’ of the State; the role of attribu-
tion in cases arguing breach of an umbrella clause; and the application of the law of
attribution to cases of State corruption.
(xii) Meriam Al-Rashid, Ulyana Bardyn and Levon Golendukhin, ‘Investment

Claims Amid Civil Unrest: Questions of Attribution and Responsibility’
(2016) 3 BCDR Intl Arb Rev 181
This article focuses on civil unrest, with emphasis on the Middle East context, to
examine whether the host State may bear responsibility in investment arbitration
cases for unrest-related damage caused by third parties. It presents historical cases
from around the globe and the relevant claims and defences that come into play.
(xiii) Albert Badia, ‘Attribution of Conducts of State-Owned Enterprises Based

on Control by the State’ in Crina Baltag (ed), ICSID Convention after 50
Years: Unsettled Issues (Kluwer 2016) 189
This book chapter identifies the test for attribution and then applies it to State-owned
enterprises, which is challenging because, under different circumstances, the level of
State control may vary. The chapter thus examines a variety of decisions, including
criminal ones, to interpret the notion of control and identify themes as they have
arisen among international investment arbitration decisions.
(xiv) Mark Feldman, ‘State-Owned Enterprises as Claimants in International

Investment Arbitration’ (2016) 31 ICSID Rev—FILJ 2
The premise of Feldman’s article is that the ICSID Convention permits claims by
State-owned enterprises against States unless the SOE was ‘acting as an agent for
the government’ or ‘discharging an essentially governmental function’.16 As such, he
draws focus to the ILC Articles which cover attribution. He explains that the relevant
Articles mirror the approach of the ICSID Convention: determining the boundaries
of the State includes considering control of the relevant actor and details of the act
in question.
(xv) Simon Olleson, ‘Attribution in Investment Treaty Arbitration’ (2016) 31

ICSID Rev—FILJ 457
This article focuses on the risk that the well-known and easily accessible rules of
attribution may be inappropriately applied to issues to which, on further analysis, are
not relevant. Olleson advances the thesis that the rules of attribution under the law
of State responsibility are inherently tied to the specific purpose for which they have
16
Mark Feldman, ‘State-Owned Enterprises as Claimants in International Investment Arbitration’ (2016) 31 ICSID
Rev—FILJ 24, 27 (citing Aron Broches, Selected Essays: World Bank, ICSID, and other Subjects of Public and Private
International Law (Martinus Nijhoff 1995) 202).
been developed (ie identifying the persons whose conduct give rise to a breach of the
international obligations of the State) and that, consequently, those rules cannot and
should not be applied to other issues which do not, as such, involve questions of State
responsibility.
The article examines the notion of attribution lato sensu in international law, the
relevant rules, the role of attribution in investment treaty arbitration and the appro-
priate scope of application of the specific rules of attribution under the law of State
responsibility, followed by an assessment of the investment treaty arbitration field’s
contribution to the development and consolidation of the international law of State
responsibility in relation to questions of attribution of conduct to the State. The arti-
cle also provides a survey of the application of the relevant rules to a selection of cases,
including an overview of criticisms and doubts arising out of such applications.
(xvi) Nwamaka Rosemary Okany, ‘Private Law Analogies and the Evolution of
International State Responsibility for Acts of Non-Governmental Entities
Exercising Decentralized/Privatized Governmental Functions’ in Anne LM
Keirse and Marco BM Loos (eds), Waves in Contract and Liability Law in
Three Decades of Ius Commune (Intersentia 2017) 165
This chapter, while not focused specifically on investment law, considers the highly
relevant issue of whether a State can be held legally responsible for wrongs com-
mitted by a non-governmental entity (individual or corporation) on the basis that
the entity committed the acts while performing governmental functions on behalf of
the State. It answers the query in the affirmative and applies the principle beyond
the expected government organs, considering the increasingly decentralization and
privatization of public interest functions (eg rail transportation, water supply, social
security, healthcare, prisons and immigration control).
(xvii) ‘Attribution under the Law of State Responsibility’ in Monique Sasson,

Substantive Law in Investment Treaty Arbitration: The Unsettled
Relationship between International Law and Municipal Law (Second
Edition) (Kluwer 2017) 15
This book chapter analyses attribution and focuses on the respective roles of interna-
tional law and municipal law in such attribution. It begins by explaining that the ILC
Articles settled the long-standing debate over whether municipal law can contribute
to the assessment of State attribution by concluding that international law governs
such acts. However, this is not to say that municipal law is irrelevant to the question
of whether conduct is internationally wrongful. As such, this chapter identifies, in the
investment treaty context, municipal law’s role in the attribution of conduct carried
out by either a State organ or a parastatal entity exercising elements of governmental
authority.
(xviii) Csaba Kovács, Attribution in International Investment Law (Kluwer

2018)
In this book, Kovács studies the concept of attribution in the context of international
investment law to determine State responsibility. He surveys the instruments that
govern the question of attribution, including the application of special and customary
rules. He also identifies commonalities among instruments and rulings, turning them
into useful practice tools. Of special importance to investment arbitration practice,

Kovács considers the role of States and State-owned enterprises and the allocation
of attribution between these two types of parties. With respect to the ILC Articles,
he reviews how tribunals have elucidated the concepts of ‘elements of governmental
authority’ and ‘under the direction or control’. The book also features analysis of the
modern rise of State-owned enterprises as investors.
(xix) Georgios Petrochilos, ‘Attribution: State Organs and Entities Exercising

Elements of Governmental Authority’ in Katia Yannaca-Small (ed),
Arbitration under International Investment Agreements: A Guide to the Key
Issues, (2nd edn, OUP 2018) ch 14, 287
In the first edition of this book (published 2010), Petrochilos’s chapter clarified that
not all the acts of a State are capable of incurring international responsibility and
he argued that the allocation of State responsibility is dependent on establishing a
link between specific conduct and attribution of that conduct to the State.17 In this
second edition of the book, Petrochilos goes further to review the concept of a ‘State
organ’, including attribution and its evidentiary implications.18
(xx) Timothy Wood, ‘State Responsibility for the Acts of Corrupt Officials:
Applying the “Reasonable Foreign Investor” Standard’ (2018) 35 J Intl Arb
103
This article discusses the ‘reasonable foreign investor’ standard and explains that,
under a liberal view, the conduct of corrupt officials may be attributed to the official’s
State where the official reasonably appears to act within the scope of his author-
ity. However, the article argues for a more stringent standard where, by virtue of
States’ international anti-corruption obligations, a foreign investor cannot reasonably
assume an official (no matter how high-ranking) to be authorized to engage in and
act upon corruption. Consequently, the conduct of a corrupt official should seldom,
if ever, be attributable to the State.
(xxi) Isuru Devendra, ‘State Responsibility for Corruption in International

Investment Arbitration’ (2019) 10 JIDS 248
This article considers the topic of corruption in international investment arbitration
holistically, including allegations of corruption by a State official as the basis of a claim
and allegations of corruption between an investor and a State official as a defence. It
observes that generally investment tribunals have been reluctant to hold host States
responsible for the corrupt conduct of their public officials. It then argues that such
responsibility would be proper under the ILC Articles, considering the investor’s
conduct, the host State’s conduct and the ostensible capacity in which the corrupt
public official has acted. The article also considers the consequences of a host State’s
international responsibility for corruption, including the host State’s ability to invoke
that same corruption as a defence.
17
Georgios Petrochilos, ‘Attribution’ in Katia Yannaca-Small (ed), Arbitration under International Investment Agree-
ments: A Guide to the Key Issues (OUP 2010) 287.
18
Such updated views likely take into account the latest investment cases involving this issue. See eg Georgios Petrochi-
los, ‘Case Comment: Bosh International, Inc and B&P Ltd Foreign Investments Enterprise v Ukraine; When Is Conduct
by a University Attributable to the State?’ (2012) 28 ICSID Rev—FILJ 262.
(xxii) Nadine Lederer, ‘Attribution under Art. 5 of the ILC Draft Articles on
State Responsibility in Investment Arbitration—To Attribute or Not to
Attribute, That Is the Question!’ (2019) 17 German Arb J 23
This article focuses on Article 5 of the ILC Articles, which deals with entities
authorized by a State to exercise governmental authority. It examines the differing
approaches developed by investment tribunals to determine the meaning of the term
‘governmental authority’ which is the key requirement in this analysis.
(xxiii) Mark McLaughlin, ‘Defining a State-Owned Enterprise in International

Investment Agreements’ (2019) 34 ICSID Rev—FILJ 595
This article seeks to provide a clearer and unified conceptual framework for State-
owned enterprises in international investment law, in the hope of resolving various
policy concerns. It suggests that any attempt to define ‘State-owned enterprise’ must
consider the following: (i) separate legal personality; (ii) extent and form of control;
(iii) eligible governmental units; (iv) nature of activity; and (v) purpose of activity.
Throughout, the article refers to the framework provided by the ILC Articles with
respect to certain elements. It proposes that, ‘while variations within each criterion
can reflect the policy choices of contracting parties, failure to adequately delimit the
boundaries of all five will confer discretion on arbitrators to do so’.19 It argues that
application of this framework to existing international investment agreements reveals
that many bilateral investment treaties are insufficiently precise as to the definition
of State-owned enterprises. However, the Trans-Pacific Partnership addresses all five
criteria, and limits the scope of covered entities to those that are ‘principally engaged
in commercial activities’ and have an ‘orientation towards profit making’. China’s
strategic initiatives could necessitate a response that would further fragment the inter-
national investment regime. Furthermore, interpretative issues remain in relation to
the scope of ‘effective influence’ and determining the purpose of investment activity.
(xxiv) ‘State Responsibility, Attribution, and Circumstances Precluding

Wrongfulness’ in Borzu Sabahi, Noah Rubins and Don Wallace, Jr,
Investor-State Arbitration (2d edn, OUP 2019) ch XVI, 511
This book chapter provides a succinct and useful overview of how the ILC Arti-
cles interact with the lex specialis of a treaty, with particular focus on attribution and
circumstances precluding wrongfulness. It highlights relevant international invest-
ment treaty cases and considers the relevance of the ‘non-precluded measures’ clauses
found in many bilateral investment treaties.
(xxv) Carlo de Stefano, Attribution in International Law and Arbitration (OUP

2020)
This Special Issue features an in-depth review of de Stefano’s recently published
monograph prepared by Ivan Cavdarevic, which we invite you to read.20 As Cav-
darevic explains, de Stefano’s work explores attribution in the context of investment
arbitration. It investigates two specific issues: first, how investment tribunals address
19
Mark McLaughlin, ‘Defining a State-Owned Enterprise in International Investment Agreements’ (2019) 34 ICSID
Rev—FILJ 595, 595.
20
Ivan Cavdarevic, ‘Book Review: Attribution in International Investment Law and Arbitration’, (2022) 37 ICSID
Rev-FILJ <https://doi.org/10.1093/icsidreview/siaa051> accessed 3 January 2022.
general rules of attribution; second, how investment treaty practice has created its
own interpretative approach and, therefore, departed from general rules. De Ste-
fano’s book is one of the most up-to-date contributions to the literature on the nexus
between the ILC Articles, attribution and investment treaty practice.
(xxvi) Martina Magnarelli, ‘The Unresolved Conundrum of Contract-Based and
Treaty-Based Claims: An Extra Element of Contention—Privity of
Contract’ in Privity of Contract in International Investment Arbitration:
Original Sin or Useful Tool? (Kluwer 2020) ch 3, 61
This book chapter focuses on the form and function of a governmental contract when
considering the dichotomy between a contract-based dispute (which is governed by
domestic law) and an international investment dispute (which is governed by inter-
national law). It presents a salient analysis of both attribution of conduct and breach
(whether of a contract or an international obligation) in the context of State-owned
entities.
(xxvii) Srilal M Perera, ‘State Responsibility for Acts of State-Controlled Entities

in Investor-State Dispute Settlement’ in Alan M Anderson and Ben
Beaumont (eds), The Investor-State Dispute Settlement System: Reform,
Replace or Status Quo? (Kluwer 2020) ch 9, 175
In the context of the current global debate on the future of the investor-State dispute
settlement system, this book chapter critically assesses the ILC Articles and how they
address the role of State-controlled entities. It argues that, because the ILC Articles
are not binding and because they present ‘serious interpretational issues’, they cause
consistency challenges and ‘sometimes rais[e] more questions than answers’.21 To
support this argument, the chapter reviews the complex issues presented by several
recent investment arbitrations and the decisions that resulted.
(xxviii) Chitransh Vijayvergia and Pavan Belmannu, ‘Exploring the Prospects of

Host-State Counterclaims in Corruption Disputes’ (2020) 36 Arb Intl
583
This article generally aims to broaden the discussion on investment arbitration coun-
terclaims to include claims emanating from a ‘corruption-frustrated investment’.
With respect to the ILC Articles, it draws on their commentary and the distinction
therein between ‘official’ act and a ‘private’ act of the officials of the State to artic-
ulate a defence to attribution and State responsibility. If the corrupt State official
lacks apparent authority this is a legitimate exception to the general rule of attribu-
tion. Accordingly, the article argues that when a public official acts without apparent
authority then his actions would qualify only as collusion between the criminal gov-
ernment official and the investor. Hence, it can be inferred that though there have
been arguments calling for the attribution of such liability to States, nothing clear-cut
exists to address this aspect of attribution.
21
Srilal M Perera, ‘State Responsibility for Acts of State-Controlled Entities in Investor-State Dispute Settlement’ in
Alan M Anderson and Ben Beaumont (eds), The Investor-State Dispute Settlement System: Reform, Replace or Status Quo?
(Kluwer 2020) ch 9, 175.
(xxix) Mark S McNeill and Daniel Purisch, ‘L’état, C’est Moi: State-Owned
Enterprises as Claimants in Investment Arbitration’ in Gourab Banerji,
Promod Nair, George Pothan Poothicote, Ashwita Ambast (eds),
International Arbitration and the Rule of Law: Essays in Honour of Fali
Nariman (PCA 2021) 153
This book chapter incisively considers the emergence of highly capitalized State-
owned enterprises and sovereign wealth funds as significant players in the interna-
tional investment sphere, and what, if any, recourse they have through investment
arbitration. In doing so, the article draws on the definitions supplied by the so-called
Broches test and the ILC Articles.
C. Elements of International Breach—Acts, Omissions, Defences and

Justifications
Once wrongful conduct may be attributed to the State, the ILC Articles require con-
sideration of the elements of international breach (Part One, Chapter III, Articles
12–15), including acts, omissions and temporal requirements. Similarly, the ILC
Articles call for examination of justifications that may preclude wrongfulness (Part
One, Chapter V, Articles 20–25). In recent years, scholarship has explored these
justifications, in particular necessity and force majeure, as they have been frequently
invoked by States in investment treaty cases.
(i) Marie Christine Hoelck Thjoernelund, ‘State of Necessity as an Exemption

from State Responsibility for Investments’ 13 UNYB (Max Planck 2009) 13
UNYB 423
This article focuses on ICSID jurisprudence arising in the framework of interna-
tional investments, the concept of necessity and exemptions from State responsibility
considering the Argentine social, economic and political crises of the 1990s–2000s.
The article deeply analyses the ILC Articles’ provision on necessity, its origins,
Argentina’s state of necessity defence and how that defence has been received by
relevant ICSID tribunals.
(ii) Amin George Forji, ‘Drawing the Right Lessons from ICSID Jurisprudence
on the Doctrine of Necessity’ (2010) 76 Arb Intl J Arb Med and Dispute
Mgmt 44
This is another article that examines the experience of Argentina following its crises
during the 1990s–2000s. It examines ICSID jurisprudence to ask whether Argentina
was in ‘dire need’ under international law, or alternatively, whether it outright
breached its own contractual commitments.
(iii) August Reinisch, ‘Necessity in Investment Arbitration’ (2010) 41 NYIL 137

Like other articles on the topic of necessity, this article analyses the many investment
law cases that emerged following the Argentine crises of the 1990s–2000s. The article
begins with the premise that the ILC Articles codified the necessity defence, which
largely reflects customary international law, rejecting the argument that the highly
complex nature of necessity characterized it as a non-justiciable political question. It
also identifies other themes regarding the necessity defence, including the potential
qualification of economic emergencies as necessity situations or the fact that neces-

sity can be invoked only in extreme cases. Yet, application of these principles to the
Argentine situation led to divergent and partly conflicting outcomes. The article thus
assesses the relationship between derogation clauses contained in many investment
treaties and state of necessity. It advocates for a proportionality approach in deter-
mining whether the actual measures adopted should be regarded as the only means
to safeguard State interests, and a nuanced assessment concerning the contribution
element by requiring that it be substantial.
(iv) Antoine Martin, ‘Investment Disputes after Argentina’s Economic Crisis:

Interpreting BIT Non-precluded Measures and the Doctrine of Necessity
under Customary International Law’ (2012) 29 J Intl Arb 49
In this article, Martin categorizes the ways investment tribunals examined Argentina’s
‘state of necessity’ reaction to its economic crisis. The first tranche accepted the prin-
ciple that customary international law exempts States from liability in circumstances
of necessity or force majeure according to Article 25 of the ILC Articles. Alterna-
tively, the second tranche considered Argentina’s reaction in the light of specific treaty
provisions, also known as ‘non-precluded measures’ (NPM) clauses.
(v) Federica I Paddeu, ‘A Genealogy of Force Majeure in International Law’

(2012) 82 BYIL 381
This article analyses international law perspectives on supervening events and, as
a matter of State defence, whether obligations should continue to be performed.
Overall, it traces the development of force majeure as a relevant notion in the field of
State responsibility and tests the ILC Articles codification efforts in this area. The
article also distinguishes force majeure from other legal notions which serve to regulate
the consequences of supervening events.
(vi) Robert D Sloane, ‘On the Use and Abuse of Necessity in the Law of State
Responsibility’ (2012) 106 AJIL 447
This article draws on the history of the ILC Articles and Argentina’s invocation of
the defence of necessity to argue that, even though this defence was raised in the
international investment law context, it has broad implications for the evolution and
development of general international law. In sum, it advocates that the concept of
necessity be reoriented to facilitate and incentivize transparency among the compet-
ing interests, policies and values that are always at stake in international disputes,
including in the field of international humanitarian law.
(vii) Martins Paparinskis, ‘Circumstances Precluding Wrongfulness in

International Investment Law’ (2016) 31 ICSID Rev—FILJ 484
This article overviews the circumstances that preclude wrongfulness of actions in
the field of international investment law. It introduces the materials that guide the
analysis; identifies the four circumstances precluding wrongfulness in the ILC Arti-
cles (consent, self-defence, countermeasures and necessity); and finally considers
the question of compensation when circumstances precluding wrongfulness apply.
While the article does not purport to be exhaustive, it is a useful introduction and
demonstrates the lack of ‘systemic coherence’.22
(viii) Giovanni Zarra, ‘Orderliness and Coherence in International Investment
Law and Arbitration: An Analysis through the Lens of State of Necessity’
(2017) 34 J Intl Arb 653
This article considers the need for orderliness and coherence in international invest-
ment law. It examines Argentina’s assertions of the necessity defence in various
investment cases.23 It argues that there must be consistency among investment awards
and concludes that arbitral tribunals should not ignore the decisions of other arbi-
tral tribunals, the values protected by other areas of international law and general
international law (in which investment arbitration is fully integrated).
(ix) Leonardo Carpentieri, ‘The Invocation of State Defenses in Times of

Conflict: Force Majeure, Necessity and the Libyan Example’ (2019) 11 Intl
J Arab Arb 7
This article examines post–Arab Spring events, the impact of civil unrest on foreign
investments and how investment tribunals have addressed these events in relevant
cases. It considers the defences of foreign majeure and necessity through the lens of
the ILC Articles. It explains that both defences are narrow and the threshold for
successful invocation requires proving a significant number of requirements.
(x) Joachim Knoll and Tania Singla, ‘Causation in International Investment

Law: Putting Article 23.2 of the India Model BIT into Context’ (2019) 8
Indian J Arb L 83
This article focuses specifically on Article 23.2 of the India Model BIT, providing
an analysis of causation, including consideration of the ILC Articles, from various
lenses, including factual causation and legal causation. It then addresses the dam-
ages owed should causation and liability be established. Although its aim is narrow,
its analysis is broad and would be of interest to anyone examining causation under
international law.
(xi) Roy Uriel Goldsman and Miguel López Forastier, ‘The Plea of Necessity in
Investment Law: The Legacy of the 2001 Argentine Crisis’, in Fabricio
Fortese (ed), Arbitration in Argentina (Kluwer 2020) ch 29, 645
This book chapter retrospectively considers the more than 30 decisions, including
awards and decisions on annulment, which considered the defence of necessity by
22
Martins Paparinskis, ‘Circumstances Precluding Wrongfulness in International Investment Law’ (2016) 31 ICSID
Rev—FILJ 484, 485.
23
See eg CMS Gas Transmission Co v Argentine Republic, ICSID Case No ARB/01/8, Award (12 May 2005); LG&E
Energy Corp, LG&E Capital Corp, LG&E Intl Inc v Argentine Republic, ICSID Case No ARB/02/1, Decision on Liability
(3 October 2006); Continental Casualty Co v Argentine Republic, ICSID Case No ARB/03/9, Award (5 September 2008);
Enron Corp & Ponderosa Assets, LP v Argentine Republic (also known as Enron Creditors Recovery Corp & Ponderosa Assets, LP
v Argentine Republic), ICSID Case No ARB/01/3, Award (22 May 2007) and Decision on the Application for Annulment
of the Argentine Republic (30 July 2010); Sempra Energy Intl v Argentine Republic, ICSID Case No ARB/02/16, Award
(28 September 2007) and Decision on the Argentine Republic’s Application for Annulment of the Award (29 June 2010).
Argentina following its 1990s–2000s crisis. In contrast to some of the other liter-
ature profiled in this section, it argues that the decisions collectively resulted in a
remarkably uniform body of law that has helped to shape the contours of the plea of
necessity in investment law. To support this argument, the book chapter first exam-
ines the salient facts, and then analyses the key issues presented to the investment
tribunals.
(xii) ‘The Public Order Exception in International Investment Arbitration’ in

Zena Prodromou, The Public Order Exception in International Trade,
Investment, Human Rights and Commercial Disputes (Kluwer 2020) ch 4,
49
This book chapter focuses on ‘non-precluded measures’ (NPM) clauses in invest-
ment treaties and addresses, in turn, the defences recognized by the ILC Articles.
It employs cases arising from the Argentine context as its primary lens for analysis.
It then draws conclusions on the public order exception in support of the book’s
broader focus.
(xiii) Prabhash Ranjan, ‘“Necessary” in Non-Precluded Measures Provisions in

Bilateral Investment Treaties: The Indian Contribution’ (2020) 24
This article argues that the ILC Articles do not provide a robust enough interpretative
framework for necessity, as required by ‘non-precluded measures’ (NPM) clauses.
It explains that the new treaty practice of India to incorporate the least restrictive
alternative measure (LRM) test in its newly signed BITs has regenerated the debate
on interpretation of ‘necessary’ in NPM clauses provisions. In turn, the article argues
that the incorporation of the LRM test in the BIT marks a rejection of the use of the
ILC Articles and customary international law defence of necessity to interpret the
treaty defence of necessity. Rather, a two-step analytical interpretative framework
is required to operationalize the LRM test to interpret ‘necessary’. This framework
is deferential to the host State’s regulatory autonomy and ensures that States fully
comply with their treaty obligations towards foreign investors.
D. The State–Individual Relationship

Central to an analysis of State responsibility is the way the State interacts with
individuals—whether they are individuals acting under colour of the State but main-
taining independent culpability (thereby warranting parallel attribution); or whether
they are foreign investors owed duties by the States with which they interact. The
literature highlighted in this section defines and refines the contours of this area.
(i) André Nollkaemper, ‘Concurrence between Individual Responsibility and State

Responsibility in International Law’ (2003) 52 ICLQ 615
This article considers the consequences of expanding the domain of individual
responsibility. It focuses on the parallel attribution of alleged acts of genocide between
1991 and 1995 to Yugoslavia and to Slobodan Milošević. While not directly relevant
24
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3662399> accessed 26 August 2021.
for international investment law, this article provides a useful conceptual compar-
ison for consideration, reasoning that ‘[t]here must be a difference between the
standard of proof required for showing a minor injury to a foreign investor and a
claim of genocide, if such violations of peremptory norms are reflected in different
remedies’.25
(ii) Robert Volterra, ‘International Law Commission Articles on State

Responsibility and Investor-State Arbitration: Do Investors Have Rights?’
(2010) 25 ICSID Rev—FILJ 218
This article offers a strong theoretical analysis of whether investors are ‘participants’
in the international legal order, possessing rights that can be analysed under the
ILC Articles. It questions whether substantive obligations can be owed to foreign
investors under customary international law through the State-investor relationship,
or whether those obligations are only owed between States. This extension of rights is
of particular importance in the context of investor-State arbitration. Volterra asserts
that remedies for breaches of State responsibility under customary international law
are accrued to the benefit of the harmed States. In sum, Volterra argues that any
rights that investors may have against host States under international law can only be
treaty-based.
(iii) Jan Ole Voss, The Impact of Investment Treaties on Contracts between Host
States and Foreign Investors (Brill 2011)
This monograph provides a comprehensive review of the complex relationship
between foreign investors and host States. Voss explains that certain provisions of
the ILC Articles allude to the availability of a State–individual relationship; however,
his analysis concludes that the ILC Articles’ lack of comprehensive framework for
individual rights renders them ‘out-of-date’.26 Nonetheless, he draws heavily on the
ILC Articles to elucidate complementary concepts, including the general concept of
State responsibility and notions of attribution.27
(iv) Martins Paparinskis, ‘Investment Treaty Arbitration and the (New) Law of
State Responsibility’ (2013) 24 EJIL 617
This article characterizes international investment law as a hybrid regime that bor-
rows from pre-existing fields of international law. It asserts that certain principles,
such as direct rights, beneficiary rights and agency, most likely are drawn from inter-
national human rights law. Along these lines, the invocation of responsibility by a
non-State actor impacts secondary rules of State responsibility. Paparinskis argues
that the shift from the State to the investor as the entity invoking responsibility for
the breach of investment treaties seems to have influenced the law of State responsi-
bility in several distinct ways. He explains that apparent disagreement about the law
of State responsibility may sometimes properly relate to questions of treaty inter-
pretation. In some cases, rules from an inter-State context are applied verbatim.
25
André Nollkaemper, ‘Concurrence between Individual Responsibility and State Responsibility in International
Law’ (2003) 52 ICLQ 615, 630.
26
Jan Ole Voss, The Impact of Investment Treaties on Contracts between Host States and Foreign Investors (Brill 2011) 97.
27
See eg ibid 100, 140.
In contrast, in other cases, the different perspectives lead to importantly diverging

conclusions regarding circumstances precluding wrongfulness, elements of remedies,
waiver of rights and, possibly, interpretative relevance of diplomatic protection rules.
E. State Responsibility for Judicial Acts
The ILC Articles expressly include responsibility for judicial acts (Part One, Chapter
II, Article 4). The literature in this section closely examines scenarios where such acts
may give rise to State liability.
(i) Zachary Douglas, ‘International Responsibility for Domestic Adjudication:

Denial of Justice Deconstructed’ (2014) 63 ICLQ 867
This article considers domestic adjudication and the ways that the acts of a national
court could give rise to a subsequent denial of justice claim. It provides a full overview
of the concept of denial of justice and is a useful entry point for the topic, including
discussion of State responsibility under the ILC Articles.
(ii) Deyan Draguiev, ‘State Responsibility for Non-Enforcement of Arbitral

Awards’ (2014) 8 WAMR 577
This article considers whether failure to enforce an arbitral award could result in
State responsibility. First, it explains that, for any such responsibility to arise, the
State must have an obligation to enforce the arbitral award. Next, the article reviews
international cases examining this issue, including European Court of Human Rights
and investment arbitration decisions. It examines the characteristics of these circum-
stances and how they lead to State responsibility. Finally, the last section of the article
proposes practical solutions to remedy the problem of an award denied enforcement.
(iii) Berk Demirkol, ‘Enforcement of International Commercial Arbitration

Agreements and Awards in Investment Treaty Arbitration’ (2015) 30 ICSID
Rev—FILJ 56
This article explores international investment disputes that arise from failure to
enforce an international commercial arbitration agreement or award under the New
York Convention. It provides a full overview of the topic, including the scope of con-
sent to investment arbitration (ie whether the investor can directly allege a violation
of the New York Convention before investment tribunals), jurisdiction ratione mate-
riae, the legal interest of the investor in such an investment claim, and the extent of
State responsibility under the ILC Articles for different causes of action and their
respective remedies.
(iv) Bernardo Sepúlveda-Amor and Merryl Lawry-White, ‘State Responsibility

and the Enforcement of Arbitral Awards’ (2017) 33 Arb Intl 35
This article considers the ramifications of a State’s non-compliance with a valid
arbitral award and the international responsibility that may arise under both cus-
tomary and treaty norms. Among other ideas, the article considers scenarios where
the refusal of national courts to enforce arbitral awards have been found to incur State
responsibility by breaching an investment treaty.
(v) Julio César Betancourt, ‘State Liability for Breach of Article II.3 of the 1958
New York Convention’ (2017) 33 Arb Intl 203
This article examines State liability for courts’ failure to comply with the obligation
to refer parties to arbitration pursuant to Article II.3 of the New York Convention. It
examines the VCLT, alongside several provisions of the ILC Articles, to argue that
failure by a State’s courts to enforce an arbitration agreement could amount to a
breach of an international obligation.
(vi) Berk Demirkol, Judicial Acts and Investment Treaty Arbitration (CUP
2018)
This monograph focuses broadly on international State responsibility for judicial acts
in the context of investment treaty arbitration, and in doing so, discusses aspects
relevant to formulating investor claims, substantive breach, notions of due process
and appropriate remedies. Of particular interest is chapter 1, which refers to the ILC
Articles to develop a framework to define ‘judicial acts’ to provide an overview of the
historical and legal concepts central to this inquiry.
(vii) Hamid G Gharavi, ‘Discord over Judicial Expropriation’ (2018) 33 ICSID

Rev—FILJ 349
This article draws on the ILC Articles and discusses judicial expropriation as com-
pared to the idea of denial of justice. It explains how various investment arbitrations
have contributed to confusion between the two concepts and concludes by providing
a clear definition of denial of justice.
(viii) Hanno Wehland, ‘Domestic Courts and Investment Treaty Tribunals: The
Effect of Local Recourse against Administrative Measures on the Breach of
Investment Protection Standards’ (2019) 36 J Intl Arb 207
This article draws on Article 3 of the ILC Articles in its broader assessment of the
relationship between investment treaty tribunals and domestic courts. It shows that
the confirmation of an administrative measure by the courts of a host State can
neither preclude a treaty tribunal from considering whether that measure breaches
an investment treaty, nor undo a treaty breach that already exists. It further sug-
gests that proceedings in the domestic courts can breach an investment treaty even
without amounting to a denial of justice. Finally, it argues that the decisions of the
domestic courts of a host State should never have binding effect on a treaty tribunal.
By proposing clear rules, the article aims to provide investors with much-needed
certainty regarding the effect of local recourse.
(ix) Berk Demirkol, ‘Access to Justice through Investment Arbitration in Cases of

Refusal of Enforcement of Commercial Arbitration Awards: Is There Any
Room for Autonomous Claims Based on the New York Convention?’ in
Leonardo VP de Oliveira and Sara Hourani (eds), Access to Justice in
Arbitration: Concept, Context and Practice (Kluwer 2020) ch 5, 93
This book chapter focuses on Article 2 of the ILC Articles, with respect to attribution,
to consider how investment treaty arbitration can be used to access justice in cases
where the enforcement of an arbitral award is wrongfully denied by the domestic
courts of the host State. It aims to answer the key question of whether an investor
can directly invoke violation of the New York Convention without basing its claim
on an investment treaty undertaking, such as the fair and equitable treatment or the
effective means standards.
(x) Gabriel Kaufmann-Kohler and Michele Potestà, Investor-State Dispute
Settlement and National Courts Current Framework and Reform Options
(European Yearbook of International Economic Special Issue) (Springer
2020) 31
Chapter 3 of this monograph focuses on the relationship between domestic courts and
investment arbitration and examines every angle to this relationship. First, it looks
at the allocation of jurisdiction over investment disputes between courts and arbitral
tribunals. It acknowledges that jurisdiction may sometimes overlap. It then maps how
investment treaties create the framework for a State’s policies in this regard, includ-
ing rules on exhaustion of local remedies, domestic litigation requirements short of
exhaustion, fork-in-the-road clauses and waiver provisions. It considers interactions
between domestic courts and international tribunals when courts exercise supervisory
functions over investment arbitration proceedings at annulment and enforcement.
The discussion focuses on Switzerland, which has seen growth in the recent years
because of the increase of non-ICSID investment arbitrations seated in Switzerland.
Finally, it considers State responsibility and the scrutiny by investment tribunals of
decisions of domestic courts in cases where court misconduct has been alleged.
F. The Different Forms of Redress: Reparation, Restitution, Compensation and

Satisfaction
The ILC Articles provide various principles for redress by States for damage causes
(Part Two, Chapter I, Articles 31 and 34–38). The literature profiled here elucidates
those principles by providing examples and considering gaps.
(i) ‘The Different Forms of Reparation’ in Crawford, Alain Pellet, and Simon
Olleson (eds), Law of International Responsibility (OUP 2010) ch 42, 589
This book chapter proceeds in four sub-chapters, each respectively covering resti-
tution (42.1, authored by Christine Gray), compensation (42.2, authored by John
Barker), interest (42.3, co-authored by Elihu Lauterpacht and Penelope Nevill) and
satisfaction (42.4, co-authored by Eric Wyler and Alain Papaux). The sub-chapters
are rooted in theoretical principles and explain how they interact with the emergence
of practical compensation doctrines, including how claims should be measured.
(ii) Borzu Sabahi, Compensation and Restitution in Investor-State Arbitration:

Principles and Practice (OUP 2011)
This book provides comprehensive coverage of the historical roots of the principles
of reparation, restitution and compensation in international law, up through modern
times, including how reparation is reflected in the Chorzów Factory case.28 The book
28
Factory at Chorzow (Germany v Poland) 1928 PCIJ (ser A, No 17), Judgment (Merits) (13 September 1928).
further, and most usefully, addresses the panoply of challenges relevant to invest-
ment arbitrations, including the distinct remedies appropriate for lawful and unlawful
expropriations, the appropriate means for valuation in hypothetical scenarios and
forms of supplemental compensation to make an aggrieved party whole (eg moral
damages, interest or arbitration costs). Finally, the book also discusses principles
that limit compensation, such as causation and prohibition on double-counting.
(iii) Patrick Dumberry, ‘Satisfaction as a Form of Reparation for Moral

Damages Suffered by Investors and Respondent States in Investor-State
Arbitration Disputes’ (2012) 3 JIDS 205
This article questions whether moral damages in investment arbitration are better
remedied through monetary compensation or satisfaction. It first examines the issue
of reparation for moral damages under general international law, and specifically the
different forms that the remedy of satisfaction may take. It determines that under
international law, monetary compensation is the appropriate remedy for moral dam-
ages affecting an individual, while satisfaction is the proper means of reparation for
such damages caused to a State directly. The article then examines recent invest-
ment cases, which also show that monetary compensation is the appropriate remedy
for moral damages affecting an individual or a corporation. Then, it turns to cases
which raise the unprecedented issue, never addressed in doctrine, of the appropriate
remedy to redress any moral damages suffered by a State in the context of interna-
tional investment law.29 It concludes that, under these circumstances, satisfaction,
in the form of a declaration of wrongfulness, would be the most appropriate form of
reparation.
(iv) Patrick Dumberry and Sebastien Cusson, ‘Wrong Direction: “Exceptional

Circumstances” and Moral Damages in International Investment
Arbitration’ (2014) 1 J Damages Intl Arb 33
This article examines both the contents and bases for moral damages under inter-
national law. It draws directly on the ILC Articles and their Commentary to define
the concept and concludes that the ILC Articles provide for compensation as the
appropriate means to redress moral damages.
(v) Gisele Stephens-Chu, ‘Is It Always All about the Money? The
Appropriateness of Non-Pecuniary Remedies in Investment Treaty
Arbitration’ (2014) 30 Arb Intl 661
This article assesses investment tribunals’ decisions that consider whether restitution
or specific performance can be ordered against a defaulting State when the investor’s
contractual or other rights remain in force. It suggests that provisional measures may
be warranted to preserve claimants’ access to such remedies. Moreover, it suggests
tribunals grant remedies which preserve the viability of the investment and the rela-
tionship between the investor and the host State because damages awards, being
29
See eg Europe Cement Investment & Trade SA v Republic of Turkey, ICSID Case No ARB(AF)/07/2, Award (13
August 2009); Cementownia ‘Nowa Huta’ SA v Republic of Turkey, ICSID Case No ARB(AF)/06/2, Award (17 September
2009).
retrospective, are not the most appropriate means of achieving such ends. The arti-
cle accordingly observes a growing trend in favour of a fuller use of remedies, not
merely to provide financial redress for past wrongs, but as a tool for preserving and
regulating investor-State relationships.
(vi) Michelle Bradfield and JC Thomas, ‘Non-Pecuniary Remedies: A Missed
Opportunity?’ (2015) 30 ICSID Rev—FILJ 635
This article considers the lack of focus on non-pecuniary remedies in interna-
tional investment disputes. It first establishes that, under the ICSID Convention,
the tribunal maintains the power to grant non-pecuniary remedies. It then studies
investment tribunal awards where non-pecuniary remedies were awarded. In many
instances, these tribunals relied heavily on the ILC Articles, which confirm that
restitution is the primary remedy under international law.30
(vii) Juan Pablo Moyano Garcia, ‘Moral Damages in Investment Arbitration:

Diverging Trends’ (2015) 6 JIDS 485
This article draws heavily on the ILC Articles and clarifies the concept of moral dam-
ages through a review of relevant investment jurisprudence. Interestingly, the article
also provides an analysis of the investment cases where claims of moral damages were
rejected by the arbitral tribunal.
(viii) Andrés Jana, ‘Reparation in Investment Treaty Arbitration’ (2016) 110

Am Socy Intl L Proc 288
In this essay, Jana provides a comprehensive survey of the remedies, ie means of
reparation, that should be available to investment tribunals, their role in the over-
all functioning of the ISDS system and the purposes such reparations may serve to
ensure the system’s overall legitimacy. It provides an overview of the hierarchy of
reparations established by the ILC Articles (full reparation, restitution, compensa-
tion and satisfaction). It then draws examples of these remedies from past investment
treaty decisions.
(ix) Noradèle Radjai and others, ‘An Analysis of the Compensation Regime
Applicable to Claims Arising from Armed Conflicts Affecting Investments in
MENA’ (2016) 3 BCDR Intl Arb Rev 219
This article draws on the ILC Articles to elucidate compensation forms and stan-
dards. While it specifically studies claims arising from armed conflicts in the Middle
East–North Africa region, the principles are of broader relevance. Interestingly, it
highlights confusion surrounding damages payable for acts committed in circum-
stances precluding wrongfulness. The confusion arises from Article 27 of the ILC
Articles, where it appears some unspecified type of compensation may be owed, even
where the act is justified by necessity or force majeure.
30
Michelle Bradfield and JC Thomas, ‘Non-Pecuniary Remedies: A Missed Opportunity?’ (2015) 30 ICSID Rev—
FILJ 635, 654.
(x) Christina L Beharry, ‘Prejudgment Interest Rates in International Investment

Arbitration’ (2017) 8 JIDS 56
This article focuses on the full reparation standard of Article 38 of the ILC Articles,
which grants the arbitral tribunal discretion in setting the interest rate and the mode
for its calculation. Overall, Beharry argues in favour of enhancing transparency and
consistency in this arena, which would be possible if arbitral tribunals were to give
greater attention to the economic and legal reasons for applying a given interest rate.
(xi) Diane A Desierto, ‘The Outer Limits of Adequate Reparations for Breaches of
Non-Expropriation Investment Treaty Provisions: Choice and Proportionality
in Chorzow’ (2017) 55 Colum J Transnatl L 395
This article focuses on the Chorzów Factory case31 and the ILC Articles’ codification
of its standard of reparation. It demonstrates that the principles are often imperfectly
or incompletely applied in cases of compensation as reparations for breaches of non-
expropriation provisions in investment treaties.
(xii) Subhiksh Vasudev, ‘Damages for Non-Material Harm in Investment Treaty

Arbitration’ (2019) 37 ASA Bull 97
This is a further article considering the measure of compensation for moral dam-
ages. It employs the ILC Articles’ framework for damages as its starting point. It
then proceeds to review relevant investment treaty decisions. Finally, it considers the
most challenging questions faced by investment arbitration tribunals, including, for
example, whether a host State may claim moral damages. On this point, it concludes
that the ILC Articles are not instructive because such individualized relationships are
outside their scope.
(xiii) Martins Paparinskis, ‘A Case Against Crippling Compensation in

International Law of State Responsibility’ (2020) 83 MLR 1246
This incisive article considers investment treaty awards against host States involving
economically ‘crippling’ compensation.32 The article posits that while it may seem
‘odd’ that investment treaty tribunals treat the current conditions of the responsible
State as ‘legally irrelevant’, this is entirely consistent with international law, includ-
ing the Chorzów Factory case.33 The article is critical of the ILC Articles. While two
forms of reparation—restitution and satisfaction—are drafted with explicit safeguards
against excessiveness, there is no comparable qualification for cases of crippling com-
pensation. Paparinskis’s argument, accordingly, proceeds in three parts. First, he
challenges the ILC’s choice not to exclude crippling compensation from full repa-
ration and argues that the ILC Articles misstate the ambiguity of the legal position
of the end-of-century international law. Second, he considers custom, treaties, and
general principles as the sources of international law that support a case for limit-
ing crippling compensation. Third, he identifies methods and techniques for various
31
Factory at Chorzow (n 28).
32
As its introductory lens, the article focuses on ConocoPhillips Petrozuata BV, ConocoPhillips Hamaca BV and Cono-
coPhillips Gulf of Paria BV v Bolivarian Republic of Venezuela, ICSID Case No ARB/07/30, Award (8 March 2019), where,
after the case had been actively pending since 2007, the tribunal issued an award of US$8.7 billion around the same time
that Venezuela’s current economic crisis began to emerge.
33
Factory at Chorzow (n 28).
actors to further reinforce the permissibility of crippling compensation or to challenge

it.
(xiv) Ceren Zeynep Pirim, ‘Reparation by Pecuniary Means of Direct Moral
Damages Suffered by States as a Result of Internationally Wrongful Acts’
(2020) 11 JIDS 242
This article argues, where moral damages have been suffered by a State’s citizens,
reparability by payments of money could remediate such damages. To substantiate
this argument, Pirim considers the ILC Articles and analyses international invest-
ment law concerning the reparability by pecuniary means of moral damages suffered
by corporations to assess whether the reasoning followed in these decisions concern-
ing investment disputes could be applied in classical public international law disputes
by analogy between private legal persons and States.
(xv) Cees Verburg, ‘Damages and Reparation in Energy Related Investment

Treaty Arbitrations’ (2021) 23 Intl Community L Rev 5
This article analyses recent decisions under the Energy Charter Treaty (ECT) and
their interpretation of the ‘full reparation’ standard regarding damages and repara-
tion. It observes that tribunals often utilize teleological interpretative tools to give
context to this norm. It also criticizes the way ECT tribunals subsequently apply the
‘full reparation’ standard. Finally, it argues that the combination of the commonly
adopted approaches to interpretation and application of customary international law,
inclusive of the ILC Articles, may explain why investors are occasionally capable of
obtaining significant amounts of compensation in ECT disputes.
G. Contributory Fault
Under the ILC Articles, any reparation by the State for wrongful conduct is to con-
sider the contribution to the injury by wilful or negligent actions or omissions by the
claimant (Part Two, Chapter II, Article 39).34 The literature profiled in this section is
innovative and advances notions of social responsibility, misconduct and causation.
(i) Judith Gill QC and Rishab Gupta, ‘The Principle of Contributory Fault after
Yukos’ (2015) 9 Dispute Resolution Intl 114
This article considers contributory fault through the lens of the Yukos case35 to com-
ment on principles of causation and damages. It engages the ILC Articles directly to
illuminate the reasoning of the Yukos tribunal’s approach to contributory fault and
treatment of the subject in previous investment treaty decisions.
34
A related issue is the challenge of overdetermination in causation for an internationally wrongful act. See eg Ilias
Plakokefalos, ‘Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity’
(2015) 26 EJIL 471.
35
Yukos Universal Limited (Isle of Man) v The Russian Federation, UNCITRAL, PCA Case No 2005–04/AA227, Final
Award (18 July 2014).
(ii) Jorge E Viñuales, ‘Investor Diligence in Investment Arbitration: Sources and

Arguments’ (2017) 32 ICSID Rev—FILJ 346
This article builds upon notions of corporate social responsibility and socially respon-
sible investment behaviours to focus on, in legal terms, the level of diligence that is
to be expected from foreign investors. Among the starting points for this analysis are
the concepts of causality and contributory fault as codified in the ILC Articles and,
in tandem, their implications for quantum awards.
(iii) Martin Jarrett, Contributory Fault and Investor Misconduct in Investment

Arbitration (CUP 2019)
This Special Issue features an in-depth review of Jarrett’s monograph on contribu-
tory fault, featuring the comments of Emmanuel Laryea.36 As explained by Laryea,
Jarret’s book offers a comprehensive study of the investor’s ‘faultworthy’ conduct and
its impact on a host State’s responsibility for an internationally wrongful act within
the context of investment treaty law. The book considers key defences that arise in
this context: ‘mismanagement’, ‘investment reprisals’ and ‘post-establishment ille-
gality’. One of the most unique features of this monograph is that Jarrett discusses
novel concepts of causation, proposing that it be defined by continuity, where causes
lead to consequences, which in turn become causes.
(iv) Farouk El-Hosseny and Patrick Devine, ‘Contributory Fault under

International Law: A Gateway for Human Rights in ISDS?’ (2020) 35
ICSID Rev—FILJ 105
This article begins by providing an overview of the ILC Articles on contributory
fault and its application to international investment case law. It then pivots to con-
sider hard law and soft law obligations that may apply to investors, including whether
there is a requirement to seek the prior and informed consent of indigenous groups
by obtaining a ‘social licence’ when conducting an extractive project that has the
potential to adversely impact such groups. Finally, it analyses the tribunal’s decision
in Bear Creek Mining Corporation v Republic of Peru,37 in which the investor’s conduct
and alleged contributory fault were closely scrutinized in the context of putative soft
law human rights obligations.
(v) Jean-Michel Marcoux and Andrea K Bjorklund, ‘Foreign Investors’

Responsibilities and Contributory Fault in Investment Arbitration’ (2020) 69
ICLQ 877
This article argues that the principle of contributory fault has not been coherently
applied by investment treaty tribunals. In support of this claim, it analyses the use
of contributory fault by tribunals and identifies factors contributing to an incoherent
approach. Overall, the article concludes that carefully crafted treaty provisions can
improve the consistency of international investment arbitration by fostering a more
coherent approach to both contributory fault and foreign investors’ responsibilities.
36
Emmanuel T Laryea, ‘Book Review: Contributory Fault and Investor Misconduct in Investment Arbitration’ (2022) 37
ICSID Rev—FILJ.
37
Bear Creek Mining Corporation v Republic of Peru, ICSID Case No ARB/14/21, Award (30 November 2017).

The 2001 ILC Articles on State Responsibility—An Annotated Bibliography

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The 2001 ILC Articles on State Responsibility—An Annotated Bibliography

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

II. ANNOTATED BIBLIOGRAPHY

(iv) James Crawford, The International Law Commission’s Articles on State

(vii) Zachary Douglas, ‘The Content of International Responsibility, Other

Throughout, the book discusses the practice of international tribunals, explaining

(i) Kaj Hober, ‘State Responsibility and Attribution’ in Peter Muchlinski,

(v) Václav Mikulka, ‘State Succession and Responsibility’ in Crawford, Alain

(vi) Danielle Morris, ‘Revolutionary Movements and de facto

(viii) Albert Badia, Piercing the Veil of State Enterprises in International

(x) ‘State Responsibility for Corruption: The Attribution Asymmetry’ in Aloysius

(xii) Meriam Al-Rashid, Ulyana Bardyn and Levon Golendukhin, ‘Investment

(xiii) Albert Badia, ‘Attribution of Conducts of State-Owned Enterprises Based

(xiv) Mark Feldman, ‘State-Owned Enterprises as Claimants in International

(xv) Simon Olleson, ‘Attribution in Investment Treaty Arbitration’ (2016) 31

(xvii) ‘Attribution under the Law of State Responsibility’ in Monique Sasson,

(xviii) Csaba Kovács, Attribution in International Investment Law (Kluwer

into useful practice tools. Of special importance to investment arbitration practice,

(xix) Georgios Petrochilos, ‘Attribution: State Organs and Entities Exercising

(xxi) Isuru Devendra, ‘State Responsibility for Corruption in International

(xxiii) Mark McLaughlin, ‘Defining a State-Owned Enterprise in International

(xxiv) ‘State Responsibility, Attribution, and Circumstances Precluding

(xxv) Carlo de Stefano, Attribution in International Law and Arbitration (OUP

(xxvii) Srilal M Perera, ‘State Responsibility for Acts of State-Controlled Entities

(xxviii) Chitransh Vijayvergia and Pavan Belmannu, ‘Exploring the Prospects of

C. Elements of International Breach—Acts, Omissions, Defences and

(i) Marie Christine Hoelck Thjoernelund, ‘State of Necessity as an Exemption

(iii) August Reinisch, ‘Necessity in Investment Arbitration’ (2010) 41 NYIL 137

qualification of economic emergencies as necessity situations or the fact that neces-

(iv) Antoine Martin, ‘Investment Disputes after Argentina’s Economic Crisis:

(v) Federica I Paddeu, ‘A Genealogy of Force Majeure in International Law’

(vii) Martins Paparinskis, ‘Circumstances Precluding Wrongfulness in

(ix) Leonardo Carpentieri, ‘The Invocation of State Defenses in Times of

(x) Joachim Knoll and Tania Singla, ‘Causation in International Investment

(xii) ‘The Public Order Exception in International Investment Arbitration’ in

(xiii) Prabhash Ranjan, ‘“Necessary” in Non-Precluded Measures Provisions in

D. The State–Individual Relationship

(i) André Nollkaemper, ‘Concurrence between Individual Responsibility and State

(ii) Robert Volterra, ‘International Law Commission Articles on State

In contrast, in other cases, the different perspectives lead to importantly diverging

(i) Zachary Douglas, ‘International Responsibility for Domestic Adjudication:

(ii) Deyan Draguiev, ‘State Responsibility for Non-Enforcement of Arbitral

(iii) Berk Demirkol, ‘Enforcement of International Commercial Arbitration

(iv) Bernardo Sepúlveda-Amor and Merryl Lawry-White, ‘State Responsibility

(vii) Hamid G Gharavi, ‘Discord over Judicial Expropriation’ (2018) 33 ICSID

(ix) Berk Demirkol, ‘Access to Justice through Investment Arbitration in Cases of

F. The Different Forms of Redress: Reparation, Restitution, Compensation and

(ii) Borzu Sabahi, Compensation and Restitution in Investor-State Arbitration:

(iii) Patrick Dumberry, ‘Satisfaction as a Form of Reparation for Moral

(iv) Patrick Dumberry and Sebastien Cusson, ‘Wrong Direction: “Exceptional

(vii) Juan Pablo Moyano Garcia, ‘Moral Damages in Investment Arbitration:

(viii) Andrés Jana, ‘Reparation in Investment Treaty Arbitration’ (2016) 110

(x) Christina L Beharry, ‘Prejudgment Interest Rates in International Investment

(xii) Subhiksh Vasudev, ‘Damages for Non-Material Harm in Investment Treaty

(xiii) Martins Paparinskis, ‘A Case Against Crippling Compensation in

actors to further reinforce the permissibility of crippling compensation or to challenge

(xv) Cees Verburg, ‘Damages and Reparation in Energy Related Investment

(ii) Jorge E Viñuales, ‘Investor Diligence in Investment Arbitration: Sources and

(iii) Martin Jarrett, Contributory Fault and Investor Misconduct in Investment

(iv) Farouk El-Hosseny and Patrick Devine, ‘Contributory Fault under

(v) Jean-Michel Marcoux and Andrea K Bjorklund, ‘Foreign Investors’

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