Research on State Responsibility Issues in the Application of Legitimacy Clauses in Corrupt Situations

In international investment arbitration involving corruption, host country often invoke legality clauses, leading tribunals to decline jurisdiction or find the claim inadmissible. This leaves investors solely bearing the adverse consequences. Such an outcome reflects an “Attribution Asymmetry”: tribunals improperly overlook the host country’s own share of liability. Under the Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter “Articles on State Responsibility”), adopted by the International Law Commission at its fifty-third session in 2001, corruption is attributable to the state and constitutes an internationally wrongful act. Consequently, the host country should bear responsibility jointly with the investor for the corrupt conduct.