- Table of Cases
- Table of International Treaties and Conventions
- Table of Rules and Resolutions
- Table of Legislation
- List of Contributors
- Policy Issues
- Investment, Investor, Nationality, and Shareholders
- Applicable Law
- Multilateral Investment Rules Revisited
- Interactions Between Investment and Non-investment Obligations
- Trade and Investment
- Admission and Establishment
- Standards of Treatment
- Coverage of Taxation Under Modern Investment Treaties
- Most-Favoured-Nation Treatment
- Emergency Exceptions: State of Necessity and <i>Force Majeure</i>
- Investment Insurance
- State Responsibility and Attribution
- Regulatory Transparency
- Corporate Social Responsibility
- Methods of Dispute Resolution
- Procedural Transparency
- Independence, Impartiality, and Duty of Disclosure of Arbitrators.
- Consent to Arbitration
- Jurisdiction and Admissibility
- The Jurisdictional Threshold of a Prima-Facie Case
- The Relationship between International Tribunals and Domestic Courts
- Parallel Proceedings
- Compensation, Damages, and Valuation
- Review of Awards
- An Appellate System in International Investment Arbitration?
- Compliance and Enforcement
- A Doctrine of Precedent?
- Tribunal's Powers versus Party Autonomy
Abstract and Keywords
This article explores the historical development of the necessity and force majeure doctrines. It focuses on the development of the International Law Commission's (ILC) project on State Responsibility, which culminated in the ILC's adoption of draft articles, including articles on the state of necessity and force majeure. It discusses in detail the elements of a necessity defence primarily through the lens of five recent cases. It examines the possibility of States' raising treaty-based defences on the grounds of ‘essential security interests’ or maintaining ‘public order’. It details the elements of a force majeure defence and addresses whether exculpatory provisions should be viewed as self-judging. This article explores the effects of a successful invocation of a necessity or force majeure defence, including whether compensation is due in the event of a successful plea. A concluding section assesses the state of the jurisprudence and outlines some of the open questions future tribunals will confront in necessity and force majeure cases.
Andrea K. Bjorklund, Acting Professor, School of Law, University of California, Davis.
Access to the complete content on Oxford Handbooks Online requires a subscription or purchase. Public users are able to search the site and view the abstracts and keywords for each book and chapter without a subscription.
If you have purchased a print title that contains an access token, please see the token for information about how to register your code.