10 - Circumstances Precluding Wrongfulness

Summary

Chapter 10 largely debunks the impression that circumstances precluding wrongfulness possess particular practical relevance in investment disputes involving armed conflict. Especially in case written exceptions are not available or their invocation fails, states may seek to invoke the general rules of state responsibility to avoid liability. However, the chapter argues that force majeure – despite the impression one might have from its genealogy – has little to no room of practical application in the context of investment treaty obligations. Necessity, in turn, remains an available defence in principle, but its requirements are extremely restrictive and the chances for meeting them are slim. Countermeasures, the chapter finally argues, are widely unavailable due to the nature of investors’ rights granted by investment treaties. Infringements of their rights cannot be justified by way of a countermeasure taken against the investors’ home state. The law of state responsibility, hence, is not a viable ‘safety net’ for states seeking to avoid liability under investment treaties in the context of armed conflict.