2 - A Definition of Defence

Summary

Chapter 2 seeks to precisely sculpt the contours of ‘defence’ by defining it. After putting forward that definition and explaining the attributes of defences, the first resistance from the current jurisprudence is encountered. The conflict point is what labelling a rule a ‘defence’ means procedurally. The original view held that respondents carried the burden of proof in respect of defences, but a critical school of prominent legal theorists has challenged this view. This chapter advocates a return to the original view. Following a demonstration of how to identify treaty provisions as containing defences, the second major enterprise of this chapter begins: distinguishing defences from other related legal concepts. This exemplifies how the definition of defence includes contributory fault and rules on investor misconduct but excludes other rules that are better classified as admissibility rules or remedy rules.