Episode 4 – Contributory Fault
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Episode 4 – Contributory Fault
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Some tribunals have relied on contributory fault to reduce damages owed to foreign investors, even after finding a breach of international obligations by the respondent state. Andrea K. Bjorklund and I go back to an article that we co-authored in 2020 on this concept. Andrea addresses the role of Article 39 of the ILC Articles as a basis for contributory fault in investment arbitration and the main concerns regarding its application. We also question the approach adopted by the tribunal in Copper Mesa v Ecuador, consider potential treaty innovations and address a more implicit approach chosen by some arbitrators to consider investor misconduct when calculating damages.
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