Negligent Salvage and Investor Misconduct: Some Ideas for a Private Law-Guided Reform of International Investment Law

Abstract

The paper makes an initial inquiry into the promising way of reforming IIL by the use of comparative and more advanced analogies from private law. According to its initial premise, the use of private law sources and analogies has received great appreciation in public inter-national law and may serve as guidance for other international law disciplines, including IIL. The paper introduces two problems: the problem of negligent salvage and the problem of investor misconduct and identifies the similarities between them. It discusses the existing liability regimes in both disciplines, how adjudicators coordinate between them and what factors influence the degree of liability. The assessment of salvage law reflects on the de-velopments existing in common law (English and American) and Norwegian law. The paper further notes the existing sociological and procedural similarities between the problems and makes suggestions for the prospective analogies. The ideas suggested in the paper may serve as initial suggestions for an improvement of the liability regimes in IIL, originating from an older and more developed private law discipline.