Abstract

This article examines one aspect of Article 10 of the ILC Articles concerning matters of State responsibility and attribution arising in relation to rebels’ conduct in the context of an insurrection or civil war: what happens to the wrongful acts committed by a government while fighting rebels in the context of a successful insurrection? Based on an analysis of State practice and case law, I will explain that the State remains responsible for the wrongful acts committed by the previous government while fighting the rebels. The article also examines how investment tribunals can use Article 10 of the ILC Articles in the context of investor-State arbitration proceedings involving rebellions and civil wars. I will critically analyse the recent Strabag v. Libya award rendered in the context of a successful rebellion overthrowing the Gaddafi regime during Libya’s civil war. I will explain how the tribunal could have made better use of the principles embodied in Article 10 to solve some of the responsibility issues it was facing. I will also examine the Tribunal’s interesting findings regarding the State’s failure to discharge its due diligence obligation of vigilance and prevention towards foreign investors in relation to the conduct of rebels.