The Avoidance and Management of Investment Treaty Disputes
A key component to the effective management of investment treaty obligations by states is the diffusion of knowledge regarding those obligations across organs of the state. Under international law, the state is treated as a unified entity such that the acts or omissions of all the state’s organs are regarded as acts or omissions of the state for the purposes of international responsibility. States thus incur international responsibility for actions taken by every branch of government, at every level of government, whether national or subnational. Indeed, not only are states responsible for actions taken by their recognised organs, but in certain circumstances states will be responsible for the actions of entities not formally part of the state-governing apparatus but otherwise exercising elements of state authority.
The scope of international investment is such that a wide range of entities and persons for whom the state is internationally responsible may take measures of one kind or another with respect to a foreign investment or investor. This wide range of entities and persons is reflected in the wide range of actors that have been responsible for the measures that have given rise to investment treaty arbitrations. Given the wide range of responsible actors for whom information concerning the state’s international commitments may in principle be relevant, the value of broad diffusion of information regarding those commitments is clear. A lack of knowledge of international commitments does not exonerate the state from liability; indeed, internationally wrongful conduct is more likely where the entities and persons for which the state is responsible act without being aware of its international commitments and do not appreciate the consequences of their decisions.
This project involves the preparation of materials for use by states in the proactive management of their IIA obligations. The goal is to create materials that states might use to disseminate information to government officials and others regarding investment treaty obligations and their operation. The project is inspired by materials prepared for ministers and other government officials by a variety of states with respect to the processes and grounds for judicial review of governmental decision making.
