States get involved in international affairs either directly or through their instrumentalities. State Entities in International Arbitration discuss the issues raised by the activities of these instrumentalities.
In some respects, it is an easy task that I have been assigned--identifying the contribution of tribunals other than ICC or ICSID to the law of the responsibility of States for acts of their instrumentalities.
The question before us is at the same time very classic and very current.
Both Judith Gill and Eugene Gulland agree, though one directly and the other indirectly, that the answer to the question whether an award rendered against a State can be enforced against one of its instrumentalities is: it depends.
The decision rendered by the French Cour de cassation on July 6, 2000 in Creighton v. Qatar has had the merit of renewing the thinking on the relationship between arbitration law and the law of State immunities.
Given the extent to which States operate through instrumentalities, and permit them to ‘own’ what would otherwise be regarded as the State’s assets, it is hardly surprising that in the context of enforcement attention turns to holding the instrumentalities accountable for the State’s obligations, or ‘lifting the veil’ to use the familiar expression of English law.
If a legal or natural person wishes to enforce in France an arbitral award rendered against a State, two different sets of rules apply: French domestic law and international law.
Professor Emmanuel Gaillard has posed the question at this Seminar: are States liable for the conduct of their instrumentalities?
An instrumentality of a State is not the State itself, but parties often seek to treat it as the State and merge it with the State in order to hold the State liable for its acts.
It is not that rare for an international arbitral tribunal to face the issue of whether, and under what conditions, a State may be held liable for the conduct of its instrumentalities on the basis of an investment treaty.
The second topic of our discussions today is, so to speak, the other side of the coin.
The question of the relationship between a State and its instrumentalities is not a recent one in international law.
United States courts frequently entertain lawsuits seeking enforcement of arbitral awards against foreign States, so there is a substantial body of law addressing efforts to enforce State liability against State instrumentalities.
