Compensation and Restitution in Investor-State Arbitration: Principles and Practice

Description

This book examines the history, principles, and practice of awarding compensation and restitution in investor-State arbitration disputes, which are initiated under investment treaties. The principles discussed may be applied to all international law cases where damage to property is an issue.The book starts by tracing the roots of the applicable international legal principles to Roman law, and from there follows their evolution through the European law of extra-contractual liability and eventually through the Chorzów Factory case to principles of compensation and restitution in the modern law of international investment.The greater part of the book is then dedicated to examination of the modern application of these principles, focusing on the jurisprudence of international tribunals under various arbitral rules such as ICSID and UNCITRAL Rules. Monetary compensation as the prevalent form of remedy sought and awarded in investor-State disputes is discussed in more detail, including topics such as the amount of compensation for damage resulting from breach of investment treaties or for lawful expropriation offoreign investor's property, a brief overview of valuation methods, supplementary compensation for moral damages, interest, costs, and currency fluctuations as well as various principles that may limit the amount of recoverable compensation, such as causation. A full chapter is dedicated to thediscussion of the theory and practice of awarding restitution in investor-State disputes. The book also covers the general principle of reparation in international law as applied in investor-State arbitrations. The topics discussed cover all the theoretical as well as practical issues which may be raised in awarding compensation and restitution in investment treaty disputes between States and foreign investors. Cover Contents Tables of Cases List of Abbreviations 1. Introduction 2. A Concise History of the Law of State Responsibility and Reparation in International Law 2.1 Introduction 2.2 Elements of the Modern Doctrines of State Responsibility and Reparation for Internationally Wrongful Acts 2.3 Roman and Private Law Sources of the Doctrine of State Responsibility and Reparation 2.4 History of the Law of Extra-Contractual Liability and Restitutio in Integrum from Roman Law to European Civil Codes 2.5 England’s Influence on the Early Notions of State Responsibility and Reparation 2.6 International Law Sources of the Doctrine of State Responsibility and Reparation 2.7 Process of Emergence of the Doctrine of State Responsibility and Reparation in International Law 3. Modern Reparation Doctrine in International Law and Investment Treaty Arbitration 3.1 Introduction 3.2 Reparation 3.3 Chorzów Factory Case 3.4 International Law Commission Articles on State Responsibility and the Concept of Reparation 3.5 Application of the Reparation Principle in Investment Arbitration 4. Restitution 4.1 Introduction 4.2 The Power of Arbitral Tribunals to Award Restitution and the Enforceability of Such Awards 4.3 Material Restitution 4.4 Juridical Restitution 4.5 Limits to Restitution: Impossibility and Disproportionate Burden 5. Compensation 5.1 Introduction 5.2 Compensation for Expropriation in Customary International Law 5.3 Compensation for Expropriation in Investment Treaties 5.4 Investment Treaties and Compensation for Violation of Protections other than Expropriation 5.5 Lawfulness and Unlawfulness of Government Conduct and Its Significance for Awarding Compensation 5.6 Calculating the Amount of Compensation 6. Supplemental Compensation 6.1 Introduction 6.2 Moral Damages 6.3 Punitive Damages 6.4 Interest 6.5 Currency of Compensation 6.6 Arbitration Costs 7. Limitations on Compensation 7.1 Introduction 7.2 Causation 7.3 Contributory Negligence 7.4 Failure to Mitigate Losses 7.5 Counterclaims and Set-off 7.6 State of Necessity 7.7 Burden of Proof and Evidentiary Matters 7.8 Prohibition of Double Recovery 7.9 Role of Equity 8. Conclusion Annex 1: Chronology Annex 2: Damages Table Annex 3: Costs Table Glossary A B C D E F G H I J L M N O P Q R S T U V W Select Bibliography Index A B C D E F G H I J L M N O P Q R S T U V W