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Investors must be held to account for their flawed contributions or
otherwise wrongful conduct, but exactly what 'holding to account'
means remains an enigma. Opinions vary on whether such
circumstances are relevant to admissibility, jurisdiction,
liability, or remedies. Reasoning from certain proposed axioms,
this book suggests that such circumstances are only relevant to
liability, meaning that the legal concepts that they activate,
contributory fault and illegality, are defences. Three defences are
identified: mismanagement, investment reprisal, and
post-establishment illegality. While they might lack formal
recognition, arbitral tribunals have implicitly applied them in
multiple investment arbitrations. In detailing their legal content,
special attention is paid to resolving the problems that they raise
relating to causation, apportionment of liability, distinguishing
these defences from their conceptual cousins, and arbitral
tribunals' jurisdiction over pleas based on investor misconduct.
The result is a restatement of the rules on contributory fault and
investor misconduct applicable in investment arbitrations.
Investors must be held to account for their flawed contributions or
otherwise wrongful conduct, but exactly what 'holding to account'
means remains an enigma. Opinions vary on whether such
circumstances are relevant to admissibility, jurisdiction,
liability, or remedies. Reasoning from certain proposed axioms,
this book suggests that such circumstances are only relevant to
liability, meaning that the legal concepts that they activate,
contributory fault and illegality, are defences. Three defences are
identified: mismanagement, investment reprisal, and
post-establishment illegality. While they might lack formal
recognition, arbitral tribunals have implicitly applied them in
multiple investment arbitrations. In detailing their legal content,
special attention is paid to resolving the problems that they raise
relating to causation, apportionment of liability, distinguishing
these defences from their conceptual cousins, and arbitral
tribunals' jurisdiction over pleas based on investor misconduct.
The result is a restatement of the rules on contributory fault and
investor misconduct applicable in investment arbitrations.
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