Otto Riese Memorial Lecture given in English by Professor Andrea K. Bjorklund (Mc Gill University, Montéal) in the Class "Droit international économique" (with an introduction by Professeur Andreas R. Ziegler)
Tribunals have been inconsistent in their consideration of foreign investors’ responsibilities in international investment arbitration. Some tribunals have nevertheless relied upon the legal principle of contributory fault to conclude that claimants have contributed to their own loss and have apportioned responsibility between the disputing parties accordingly. While offering an interesting avenue to address some forms of investor misconduct, the application of contributory fault by tribunals lacks a coherent approach. How can international investment agreements contribute to a more consistent application of contributory fault in a way that ensures a more coherent consideration of foreign investors’ responsibilities in international investment arbitration? This article argues that carefully crafted provisions can improve the consistency of international investment arbitration by fostering a more coherent approach to both contributory fault and foreign investors’ responsibilities. After analyzing the use of the legal principle by tribunals and identifying issues nourishing an incoherent approach, this article examines provisions from international instruments that can contribute to seek more consistency on these two fronts.
Andrea K. Bjorklund is a Full Professor and the L. Yves Fortier Chair in International Arbitration and International Commercial Law at McGill University Faculty of Law. In 2017, she was named one of McGill’s Norton Rose Fulbright Scholars in International Arbitration and International Commercial Law. In Winter 2018, she was a Plumer Fellow at St. Anne’s College and a Visiting Fellow in the Law Faculty, University of Oxford.