This article
aims to illustrate how arbitral tribunals and municipal courts address the
treatment of States and State-owned enterprises (SOEs) as parties to contracts
concluded with foreign business undertakings. Accordingly, this analysis covers
various issues, such as the extension of contractual obligations and of the
subjective scope of an arbitration agreement from a SOE to the State, or the
possibility to enforce an award rendered against the State on the assets of a
SOE, and vice versa. The article addresses the attitude of judges and
commercial arbitrators in treating public ownership as equivalent to private
ownership for the purposes of applying corporate law doctrines aimed at
piercing the corporate veil and private law doctrines, ending with the
imputation of liability to the State based on the legal commitments negotiated
or contracted by its SOEs. In this respect, it is submitted that adjudicators
may also consider, with appropriate nuance, the guidance stemming from the
international principles of attribution of conduct to States elaborated in the framework
of the codification of the law of State responsibility for internationally
wrongful acts.