Attribution of Conduct to a State

Abstract

This article examines the application of ARSIWA’s provisions on attribution of conduct to a State in international investment law and arbitration. In particular, it critically analyses the rules of attribution of conduct codified in ARSIWA Articles 4 (conduct of organs of a State), 5 (conduct of persons or entities exercising elements of governmental authority), 7 (excess of authority or contravention of instructions) and 8 (conduct directed or controlled by a State). A central message of the present contribution pertains to the methodological demand for an inclusive perspective by adjudicators as to the public international law dimension of investor-State dispute settlement and the direct applicability therein of ARSIWA’s customary rules on attribution.