In
investment arbitration, the international law rules of “attribution”
are a means to establish links between an
entity (or a person) and a State. On the basis of these rules, a foreign
investor may demonstrate that the acts of an entity (or person) which gave rise
to a breach of an investment treaty are in fact attributable to a State.
However, an analysis of decisions reveal that investor-State tribunals have
been divided on the issue of whether the question of attribution is one that
procedurally belongs to the jurisdictional stage, or the merits. This raises
questions concerning the optimal procedural treatment of the issue of
attribution in investor-State disputes, particularly since the manner in which
the question is treated procedurally would have a bearing on other aspects of
the dispute, such as procedural efficiency. In light of growing trends,
tribunals are also likely to be faced with the question of attribution more
frequently than in the past. Thus, this article revisits the various decisions
and available legal literature on the issue, to ascertain whether tribunals
have developed a framework that can be used to consistently address the optimal
procedural treatment of the question of attribution.