Originally from State Entities in International Arbitration

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In some respects, it is an easy task that I have been assigned—identifying the contribution of tribunals other than ICC or ICSID to the law of the responsibility of States for acts of their instrumentalities. After all, the principles on this subject applied by ICC and ICSID tribunals are ones of customary international law. These principles were formed in the crucible of State practice and arbitral decisions over the centuries and decades that preceded the emergence of the ICC and ICSID as sources of public international law. Indeed, not a single ICSID or ICC case is mentioned in the discussion of attribution of acts to States in the commentaries to what is perhaps the most authoritative statement on the subject of our time—the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (“ILC Articles”).1 The jurisprudence of the “other” tribunals, I would submit, forms the bedrock on which contemporary international principles of attribution are founded.

In the discussion that follows, I briefly outline the basic principles of State responsibility for acts of instrumentalities established by the jurisprudence of these tribunals. I then examine recent jurisprudence of “other” tribunals on attribution in an increasingly important context—that of the State’s liability for the conduct of enterprises that it owns or controls.