Martins Paparinskis

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The case study of investment treaty arbitration provides an opportunity to examine whether and how the invocation of responsibility by a non-state actor has affected secondary rules of state responsibility. This article takes the analytical perspective of investors, capable of being perceived as right-holders (by reference to human and consular rights), beneficiaries (by reference to the law of treaties rules on third states), or agents (by reference to diplomatic protection). The shift from the state to the investor as the entity invoking responsibility for the breach of investment treaties seems to have influenced the law of state responsibility in a number of distinct ways. The apparent disagreement about the law of state responsibility may sometimes properly relate to questions of treaty interpretation, while in other cases rules from an inter-state context are applied verbatim. In other cases, the different perspectives lead to importantly different conclusions regarding circumstances precluding wrongfulness, elements of remedies, waiver of rights, and, possibly, interpretative relevance of diplomatic protection rules. The overall thesis is that conceptual challenges faced by investment arbitration may be illuminated by the solutions provided by the regimes that formed the background for its creation.

In recent years, the International Court of Justice has been increasingly asked to adjudicate upon claims of State responsibility that raise or at least touch upon the possibility of international responsibility of multiple entities. In different substantive contexts, these cases raise similar conceptual questions that might be articulated by reference to the concept of ‘shared responsibility’. The focus of this article is on procedural matters, and in particular on how shared responsibility may be implemented in the ICJ. The argument will be made in three steps, dealing in turn with the manner in which cases concerning shared responsibility could be brought before the Court, the way how such cases could be handled, and the challenges raised in such cases by absent parties. The article argues for a nuanced consideration of the rationale of the procedural challenges: some are unremarkable in conceptual terms and reflect the broader judicial architecture of the Court, while others are of particular importance for shared responsibility, even though the particular legal issue might be mutatis mutandis relevant to other multilateral disputes.