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11 - Limitations on Liability

from Part IV - Exceptions and Defences

Published online by Cambridge University Press:  11 August 2022

Tobias Ackermann
Affiliation:
Ruhr-Universität, Bochum, Germany
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Summary

When host states are liable under investment treaties, they may seek, as a last line of defence, to reduce the extent of liability. Chapter 11 explores arguments respondents may put forward to this end. It shows that the wide discretion arbitral tribunals enjoy when awarding damages presents an opportunity for them to be mindful of the circumstances of armed conflict. These conditions may impact the compensation for lost profits or invite reliance on equitable principles. However, the chapter argues, concerns for economies involved in or recovering from armed conflict should guide tribunals only exceptionally. Contributory fault, on the other hand, may lead arbitrators to cap damages substantially if they find unlawful or unreasonable conduct on the claimant’s side. In contrast, states may raise counterclaims on the basis of investor misconduct during armed conflict only rarely. Overall, the chapter shows that the stage of damages is not the most promising avenue for states seeking to escape liability for armed conflict-related conduct. Focus must instead lie on the primary level of treaty drafting and interpretation.

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Publisher: Cambridge University Press
Print publication year: 2022

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  • Limitations on Liability
  • Tobias Ackermann, Ruhr-Universität, Bochum, Germany
  • Book: The Effects of Armed Conflict on Investment Treaties
  • Online publication: 11 August 2022
  • Chapter DOI: https://doi.org/10.1017/9781009207805.012
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  • Limitations on Liability
  • Tobias Ackermann, Ruhr-Universität, Bochum, Germany
  • Book: The Effects of Armed Conflict on Investment Treaties
  • Online publication: 11 August 2022
  • Chapter DOI: https://doi.org/10.1017/9781009207805.012
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Limitations on Liability
  • Tobias Ackermann, Ruhr-Universität, Bochum, Germany
  • Book: The Effects of Armed Conflict on Investment Treaties
  • Online publication: 11 August 2022
  • Chapter DOI: https://doi.org/10.1017/9781009207805.012
Available formats
×