A HIGHLY USEFUL STATEMENT FOR INTERNATIONAL LAWYERS ON BREACH OF AGREEMENTS

An appreciation by Elizabeth Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator


This new book from Carlos de Stefano is intriguingly entitled “Attribution in International Law and Arbitration” and has been published by Oxford University Press (OUP). He sets out his aim in the Preface stating that the work “clarifies and critically discusses the international rules of attribution of conduct, particularly regarding their application to states under international investment law”.

We consider that the title will be of great assistance to all involved in the growing importance of alternative dispute resolution procedures. Carlos examines here what he identifies as “the key question of how and to what extent breaches of State obligations, particularly in respect of States' commitments to foreign investors under international investment agreements (IIAs) and bilateral investment treaties (BITs), can be attributed”.

The author goes on to say that of special interest, within this context, “is the responsibility of States when the alleged breach has been committed by separate legal entities, rather than the state itself. Under domestic law, entities such as state-owned enterprises (SOEs) are considered legally distinct, however the State may still be considered responsible for their actions under international law”.

He also reviews the relevant issues systematically. He starts with a direct reference to the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) on attribution, finalized by the International law Commission (ILC) in 2001.

Carlos de Stefano then moves on to elaborate on specific issues of international investment law. He bases his research on a detailed examination of practice and case law, offering, at all suitable times, “due consideration to the academic debate” which lends useful authority to the subject matter. What Carlos produces for us is a full, innovative take on one of the most difficult questions in investment arbitration. His final comment reveals the worth of the book when he writes that, based on its original approach and exhaustiveness, it “fills a gap in the academic literature, especially by assessing recent case law.” These authorities cover investment treaty claims by placing those relevant decisions “in the context of prior scholarly debates” and, of course, decided case law.

We agree that the work is most definitely “suggested reading” as a single reference book on the rules of attribution of conduct to States in public international law and international investment arbitration. Thank you, Carlos.

The publication date of this hardback edition was 9th January 2020.