The Desertec Concept and the ICSID Convention - Investing into North African Solar Power - page 157

3.5.1.1.4.1 International Arbitration and the ILC Responsibility 2001

There is also a lot of ICSID case law concerning the attribution of agencies or
subdivisions. First of all, there are tribunals, which generally accept the ILC
Responsibility as being applicable in ICSID arbitration processes. 193 Another
ICSID tribunal did not assess the Articles of the ILC Responsibility 2001, but set
up its own criteria for imputation. According to this tribunal, structure (e.g. owned
by the state) and function (e.g. functions of governmental control) of the agency are
relevant. 194 If the subdivision or agency manages the whole legal relationships
instead of the state, there can be almost no doubt that the state is responsible for the
actions of its agency. 195 In addition, other ad hoc tribunals and a SCC tribunal ruled
in favor of an application. 196 One LCIA tribunal also supported the possibility of
attributing the entity s action to the state. 197

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3.5.1.1.4.2 Attribution and Responsibility of Treaty Claim Breaches

As mentioned above, there is a difference between contract and treaty claims. In
general, ICSID tribunals are only responsible for treaty claims. Treaty claims are
based on the BIT, which is an international treaty between two subjects of interna-
tional law. Therefore, international obligations exist and the ILC Responsibility
applies. There is no question concerning the fact that a state cannot avoid its
responsibility by “using” a state owned agency. 198 Nevertheless, there is the
principle that state entities are separate from the state and its actions are not
attributed to the state. 199 Overall, the attribution of the obligation is only useful if
the obligation is that of the state. 200
There are ICSID tribunals supporting the attribution in cases of an entity acting
instead of the state. 201 Some authors point out that every time a subdivision or

193 ICSID [2006] ARB/04/13, 26 para 84; ICSID [2005] ARB/01/11—Award, 69-70 paras 69-70;
Highly persuasive statement on the attribution of responsibility, in: ICSID [2001] ARB(AF)/98/3,
20 para 70; ILC Responsibility 2001 is applicable in investment arbitration and U.S. Court of
Appeal relied on ILC Responsibility 2001, in: Hob ´ r( 2008 ), 545 (548); Dolzer and Schreuer
( 2008 ), 200.
194 ICSID [2000] ARB/97/7—Decision, 28-29 para 77; cf ICSID [2001] ARB/00/4, 609 (616-
618) paras 31-33.
195

ICSID [2005] ARB/01/11—Award, 73 para 79; cf ICSID [2001] ARB/00/4, 609 (616-618)
paras 31-33; cf Loncle ( 2005 ), 3 (6); State cannot use domestic law to argue that it is not
responsible under international law, in: Harten ( 2007 ), 65.
196

State Treasury in Poland acted instead of Poland, in: Ad hoc Arbitration [2005] Partial Award,
48 para 134; Latvia holds 100 % of a company, in: SCC [2003], 29-30.
197

LCIA [2006], 44 para 154.
198 Loncle ( 2005 ), 3 (6); cf Walter ( 2006 ), 815 (823); Vinuesa ( 2005 ), 331 (337) and (354).
199 Sinclair ( 2009 ), 92 (101); Dolzer and Schreuer ( 2008 ), 198.
200 The state must only observe its rights and obligations, in: Gallus ( 2008 ), 157 (166).
201 State owned company can be attributed to the state, in: ICSID [2005] ARB/01/11—Award, 75-
76 para 86; ICSID [2003] ARB/01/13, 307 (362-363) para 166.