The Impact of Investment Arbitration on the Development of State Responsibility Defences
Hofmann, Schill & Tams, ICSID at 50: Investment Arbitration as a Motor of General International Law? (Edward Elgar, 2017) (Forthcoming)
29 Pages Posted: 2 Dec 2016 Last revised: 23 Sep 2020
Date Written: January 12, 2017
This chapter examines the impact that investment arbitration has had on the development of the defences in the law of State responsibility. In particular, it considers the impact of the practice and case-law of the 19th and early 20th centuries on the development of the plea of force majeure, currently codified in Article 23 ARS; the impact of investment arbitration since 2001 on the classification of state of necessity in Article 25 ARS as an excuse and on the (im)permissibility of countermeasures (Article 22 ARS) affecting private rights.
Keywords: State responsibility, investment law, investment arbitration, state of necessity, countermeasures, force majeure, justification, circumstances precluding wrongfulness, excuse, circumstances precluding responsibility
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