Environmental Engineering Reference
In-Depth Information
agency acts with public authority, there is an attribution to the state.
202
Others point
out that it is irrelevant to categorize it (e.g. utilization of sovereign power) because
the mere fact that the state breaches an existing obligation is sufficient.
203
Some-
times it is claimed that the state must designate its agency if this agency signs the
investment contract.
204
There is a consensus that treaty claims can be attributed to the agency because
the ILC Responsibility 2001 applies to international obligations. Consequently, any
investor—like Dii in the past—could be confident that any behavior on the side of
ONE or Morocco which violates the BIT obligations will be included. These claims
can also be filed against the state of Morocco as a respondent in ICSID arbitration.
The fact that Morocco has not designated ONE is irrelevant because the BIT
protection cannot be eroded by “using” a state agency.
3.5.1.1.4.3 Attribution of Contract Claim Breaches
Most tribunals deny attribution in cases of contract claims.
205
In one of the cases,
the tribunal highlighted that there is no attribution, because the entity at issue is
'
) an autonomous corporate body, legally and financially distinct from (the host
state) (
(
...
206
The BIT does not extend to breaches of the contract to which the
host state is not party to.
207
There must be a clear distinction between
...
).
'
) the
responsibility of a State for the conduct of an entity that violates international law
(e.g. a breach of Treaty), and the responsibility of a State for the conduct of an entity
that breaches a municipal law contract (
(
...
'
208
This is mainly due to the fact that
the entity did not enter into the BIT because BITs are concluded by
...
).
'
(
...
) separate
'
209
Similarly, another tribunal denied attribution, because
and distinct (entities).
'
'
) (the host state) is not liable for the performance of contracts entered into by
(an agency or subdivision) which possesses a separate legal personality under its
own law and is responsible for the performance of its own contracts.
(
...
210
This is also
'
supported by another tribunal, which highlighted that:
202
Walter (
2006
), 815 (822); Dolzer and Schreuer (
2008
), 198-199; There is always an attribution
to the state, in: Hob
´
r(
2008
), 545 (568).
203
Crawford (
2008
), 351 (356). This is only different, if the primary obligation demands some-
thing differently, in: Crawford (
2008
), 351 (356).
204
Loncle (
2005
), 3 (7); An investor should previously address the question, if the agency fulfills
all ICSID requirements, in: Moses (
2008
), 223.
205
ICSID [2006] ARB/01/12—Award, 138-139 para 384; ICSID [2005] ARB/03/3, 75 para 223.
206
No attribution, if
'
(
...
) the entity involved has no link whatsoever with the (s)tate (
...
)
'
, in:
ICSID [2006] ARB/04/13, 26 para 84; ICSID [2005] ARB/03/3, 69-71 paras 199-209.
207
ICSID [2005] ARB/03/3, 73 para 214; ICSID [2001] ARB/00/4, 609 (623-624) paras 60-61; cf
ICSID [2001] ARB/00/6, 32 para 68.
208
ICSID [2005] ARB/03/3, 71 para 210.
209
cf ICSID [2006] ARB/01/12—Award, 138-139 para 384; ICSID [2005] ARB/03/3, 75 para
223.
210
ICSID [2002] ARB/97/3—Annulment, 89 (128) para 96.
