Arbitrating attribution: corporations in the law of State responsibility

Abstract

This chapter examines corporations in the law of State responsibility, focusing on techniques of attribution in investment arbitration. It surveys the practice on four rules under the Articles on Responsibility of States for Internationally Wrongful Acts. It identifies three mistakes: tribunals have misapplied attribution rules to general conduct; extended the privity of domestic contracts from autonomous entities to the State itself; and conflated the public interest in commercial activities with elements of governmental authority. An extended range of attributable conduct has tended to favour the financial interests of global corporations, with distributive stakes for host States and local communities.