Martin Jarrett, Contributory Fault and Investor Misconduct in Investment Arbitration
Contributory Fault and Investor Misconduct in Investment Arbitration is the outcome of a doctoral thesis defended at the University of Mannheim. The book consists of six chapters amounting to a total of 164 pages, not including tables of cases and materia
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Contributory Fault and Investor Misconduct in Investment Arbitration is the outcome of a doctoral thesis defended at the University of Mannheim. The book consists of six chapters amounting to a total of 164 pages, not including tables of cases and materials, a bibliography, and an index. Chester Brown of the University of Sydney’s Law School contributed a foreword. Jarrett seeks to analyse how investment tribunals have dealt with the issue of investor misconduct. In particular, he calls the respective case law “disorganised and underdeveloped” (p. 2). He does so against the background of a supposed “asymmetry” (p. 1) of rights contained in investment treaties, and with a view to “[r]estoring some balance to international investment law” (p. 2). With his contribution, Jarrett hopes to bolster “the legitimacy of investment arbitration and international investment law” (p. 164). The first chapter, “A Schematic of International Investment Law”, starts off with an all too short introduction to the book’s main research question before attempting a categorisation of the rules of international investment law into jurisdiction, admissibility, liability, and remedies. While the first two issues relate to preliminary questions in proceedings, liability relates to the merits phase (Jarrett does not fully explain why he uses “liability” as opposed to “responsibility”), the third issue— remedies—refer to reparations in the sense of the International Law Commission Articles on State Responsibility (ILC ARS). A roadmap beyond this brief introduction would have been helpful in navigating the following chapters. The book proceeds to define the concept of a “defence”. The chapter is theoretically and methodologically dense, drawing strongly from common law writing on defences in criminal and tort law. The core takeaway is that “if a legal element forms part of a defence, then the respondent assumes the burden of proof in respect of that
M. P. Beham (*) University of Passau, Passau, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 European Yearbook of International Economic Law 2020, European Yearbook of International Economic Law 10, https://doi.org/10.1007/8165_2020_57
M. P. Beham
legal element” (p. 19), an approach taken by arbitral tribunals with regard to contributory fault and investor misconduct, as Jarrett demonstrates later in his book. In a similar fashion, the third chapter deals with the question of “causation”. Jarrett provides an account and critique of different theories applied in domestic law, to develop his “new theory on causation for international investment law” (p. 53). Besides common law references, Jarrett claims to draw on German law (p. 44), though references seem restricted to a small number of general observations from comparative publications (see, for example, p. 46, ns. 22 and 26) and textbooks (p. 56, n. 84). Following a patchwork of partial aspects and examples from different layers of society, the gist of the new theory seems to be that “[f]or an antecedent to be count
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