Introduction

This Article deals with the little-discussed implications in the current BIT regime of investor conduct when investments are threatened with expropriation and other unlawful state conduct. In municipal legal systems, such as that of the U.S., the law seeks to foster efficient economic outcomes by encouraging commercial parties to mitigate their losses, including by means of doctrines such as "anticipatory breach" and "comparative fault". The commercial reflex of the investor in such a regime often will be to sell a threatened investment if a commercially reasonable offer is ...