Part III Guide to Key Jurisdictional Issues, 14 Attribution: State Organs and Entities Exercising Elements of Governmental Authority
From: Arbitration Under International Investment Agreements: A Guide to the Key Issues (2nd Edition)
Edited By: Katia Yannaca-Small
- ECT (Energy Charter Treaty) — NAFTA (North American Free Trade Agreement) — Attribution
This chapter discusses the issue of attribution in investment treaties. Attribution is the legal operation by which the allegedly wrongful deed is connected to the State as the doer. This is a necessary operation, serving as it does the needs of the unitary conception of the State in international law: the conduct of the multitude of persons and entities through whom the State in fact operates must be funnelled through the rules on attribution. The vast majority of investment treaties do not contain special rules of attribution, so they are to be read in the light of general international law in that respect. Arguably, however, exceptions setting forth a lex specialis may be found in the NAFTA Agreement, the Energy Charter Treaty, and certain U.S. bilateral investment treaties which contain provisions in respect of State enterprises and monopolies.