The Dichotomy of Obligations of Conduct and Result in International Investment Law

Abstract

The content of an international obligation must be ascertained before the investment tribunals have decided that the international obligation was breached. Whilst some obligations in investment treaties require a result to be attained by states or investors, others demand they undertake their best efforts. The dichotomy of obligations of conduct and result is a useful tool in analysing the content of international obligations derived from standards of treatment contained in investment treaties, thereby assisting in determining international responsibility. Firstly, the standard of full protection and security is analysed through the lenses of the dichotomy. Secondly, the procedural obligations stemming from dispute resolution provisions are examined, including the obligation to submit to arbitration, the obligation to comply with arbitral awards, and the obligation to recognise and enforce the latter. Thirdly, the dichotomy serves to enhance the understanding of investors’ obligations to respect human rights under investment treaties. The dichotomy may thus assist in establishing the content of the human rights’ obligation in question, and thus the investor’s responsibility for its breach.