Abstract
It seems appropriate to start by considering the options of the effects and consequences of the decisions of international dispute settlement bodies in general and of investment arbitral tribunals in particular, in order to make concrete recommendations for the structuring of the decisions of an MIC.
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Notes
- 1.
- 2.
See e.g. ICJ, Democratic Republic Congo v. Belgium, ICJ Reports, 2002, p. 31 et seq. The ICJ finds the duty of Belgium to cancel a Belgian warrant of arrest instead of reversing the warrant as direct consequence of the decision; ECtHR (GC), No. 32772/02, Verein gegen Tierfabriken (VgT) v. Switzerland (No 2), para. 85 et seq.; IACHR, Aloeboetoe et al. v. Suriname, Judgment, 10.9.1993, IACHR (Ser. C) No. 15 (1993).
- 3.
See e.g. ECtHR, No. 27527/03, L. v. Lithuania, Judgment, 11.9.2007, para. 74, where the ECtHR adjudicates the opportunity of compensation, if the required change in the law is not made within three months.
- 4.
Libyan American Oil Company (Liamco) v. Libya, Award, 12.4.1977, 62 ILR (1981) 140; British Petroleum v. Libya, Award, 10.10.1973 and 1.8.1974, 53 ILR (1973) 297.
- 5.
See Texaco Overseas Petroleum Company and California Asiatic Oil Company v. Libya, (1979) 53 ILR 389, para. 111, and Antoine Goetz and others v. Republic of Burundi, ICSID Case No. ARB/95/3, Award, 10.2.1999, para. 136 et seq., where the tribunals awarded such an option to mere financial compensation to the states.
- 6.
See e.g. Article 34 US Model BIT 2012: “1. Where a tribunal makes a final award against a respondent, the tribunal may award, separately or in combination, only: (a) monetary damages and any applicable interest; and (b) restitution of property, in which case the award shall provide that the respondent may pay monetary damages and any applicable interest in lieu of restitution.”; Art. 1135 NAFTA: “1. Where a Tribunal makes a final award against a Party, the Tribunal may award, separately or in combination, only: (a) monetary damages and any applicable interest; (b) restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution.”
- 7.
The WTO cannot adjudicate compensation, if the defendant party accepts this obligation voluntarily, cf. Article 22.2 DSU: “If the Member concerned fails to bring the measure found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations and rulings within the reasonable period of time determined pursuant to paragraph 3 of Article 21, such Member shall, if so requested, and no later than the expiry of the reasonable period of time, enter into negotiations with any party having invoked the dispute settlement procedures, with a view to developing mutually acceptable compensation. If no satisfactory compensation has been agreed within 20 days after the date of expiry of the reasonable period of time, any party having invoked the dispute settlement procedures may request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements.” See Bronckers and van den Broak (2005), p. 101.
- 8.
Article 260 TFEU.
- 9.
Article 264 TFEU.
- 10.
The International Law Commission lists the possibilities of “restitution, compensation and satisfaction” in Article 34 ILC Draft Articles on State Responsibility. The consequences of a “specific performance” are not explicitly stated by the ILC Articles. Gray (1999), p. 419 et seq., assumes that the ILC “specific performances” can be subsumed as “restitution”.
- 11.
Article 53 para. 1 ICSID Convention: “The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention.”
- 12.
UNCITRAL Arbitration Rules 1976, 15 ILM 701 (1976), www.uncitral.org/uncitral/en/uncitraltexts/arbitration/1976Arbitration_rules.html; UNCITRAL Arbitration Rules (as adopted in 2013), www.uncitral.org/pdf/english/texts/arbitration/arb-rules-2013/UNCITRAL-Arbitration-Rules-2013-e.pdf.
- 13.
The UNCITRAL Rules accept an interpretation and correction of misspellings or miscalculations. The majority of all legal systems accept the opportunity of setting aside of an arbitral award for special reasons, following the UNICTRAL Model Law. Therefore, the finality of awards in national law of the forum arbitri is not absolute. See Caron and Caplan (2013), p. 740.
- 14.
Article 34 para. 2 UNCITRAL Arbitration Rules: “All awards shall be made in writing and shall be final and binding on the parties. The parties shall carry out all awards without delay.”
- 15.
Article 35 para. 6 ICC Arbitration Rules 2017.
- 16.
Article 26 para. 8 LCIA Arbitration Rules 2014.
- 17.
Article 46 SCC Rules 2017.
- 18.
Article 1136 NAFTA.
- 19.
Article 26 para. 8 ECT.
- 20.
Cf. de Brabandere (2014), p. 184 et seq.; LG&E v. Argentinia, ICSID Case No. ARB/02/1, Award on Damages, para. 87: “[…] the judicial restitution required in this case would imply modification of the current legal situation by annulling or enacting legislative and administrative measures that make over the effect of the legislation in breach. The Tribunal cannot compel Argentina to do so without a sentiment of undue interference with its sovereignty.”
- 21.
Article 34 ILC Articles on State Responsibility: “Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter.”
- 22.
Permanent Court of International Justice, Factory at Chorzow, Judgment No. 13, 1927, p. 47; de Brabandere (2014), p. 179 et seq.
- 23.
- 24.
- 25.
See a summary of these critical opinions in Dermikol (2015), pp. 403, 408.
- 26.
Schreuer (2004), p. 325, bases his opinion on the travaux préparatoires and the international practice of arbitral tribunals.
- 27.
Ioan Micula and others v. Romania, ICSID Case No. ARB/05/02, Decision on Jurisdiction and Admissibility, 24.9.2008, para. 166-168; ATA Construction v. Jordan, ICSID Case No. ARB/08/2, Award, 18.5.2010; Franck Charles Arif v. Moldova, ICSID Case No. ARB/11/23, Award, 8.4.2013.
- 28.
Ioan Micula and others v. Romania, ICSID Case No. ARB/05/02, Decision on Jurisdiction and Admissibility, 24.9.2008, para. 166-168; ATA Construction v. Jordan, ICSID Case No. ARB/08/2, Award, 18.5.2010; Franck Charles Arif v. Moldova, ICSID Case No. ARB/11/23, Award, 8.4.2013.
- 29.
Goetz and others v. Republic of Burundi, ISCID Case No. ARB/95/3, Award, 10.2.1999, para. 136 et seq. is an interesting case concerning the possibility of awarding non-monetary legal remedies. As requested, the ICSID Tribunal awarded a two-tiered legal remedy: only if Burundi will not have fulfilled his contractual obligation to perform within a fixed period of time, Burundi would have to pay damages. Although there was an obligation for an act with legal consequences directly to national law, it could only be enforced voluntarily. This solution enables the state to decide autonomously, if a change in the law respectively performance of the contract or performance of damages could better be implemented.
- 30.
Schreuer et al. (2009), p. 1138 et seq.
- 31.
See e.g. Article 34 US Model BIT 2012; Article 1135 NAFTA; Article 26 para. 8 ECT.
References
Bronckers M, van den Broak N (2005) Financial compensation in the WTO. Improving the remedies of WTO dispute settlement. J Int Econ Law 8:101–126
Brower CN, Brueschke JD (1998) The Iran-United States Claims Tribunal. Martinus Nijhoff Publishers, Leiden
Caron DC, Caplan LM (2013) The UNCITRAL arbitration rules: a commentary, 2nd edn. Oxford University Press, Oxford
De Brabandere E (2014) Investment treaty arbitration as public international law: procedural aspects and implications. Cambridge University Press, Cambridge
Dermikol B (2015) Remedies in investment treaty arbitration. J Int Dispute Settlement 6:403–426
Gray CD (1987) Judicial remedies in international law. Clarendon Press Publication, Oxford
Gray C (1999) The choice between restitution and compensation. Eur J Int Law 10:413–423
Harris DJ, O’Boyle M, Bates E, Buckley C (2009) Harris, O’Boyle, Warbrick: Law of the European Convention on Human Rights. Oxford University Press, Oxford
McLachlan C et al (2008) International investment arbitration – substantive principles. Oxford University Press, Oxford
Schreuer C (2004) Non-pecuniary remedies in ICSID arbitration. Arbitr Int 20:325–332
Schreuer CH, Malintoppi L, Reinisch A, Sinclair A (2009) The ICSID Convention. A commentary, 2nd edn. Cambridge University Press, Cambridge
Shaw MN (2014) International law, 7th edn. Cambridge University Press, Cambridge
Toope SJ (1990) Mixed international arbitration. Grotius Publications Ltd., Cambridge
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Bungenberg, M., Reinisch, A. (2018). The Pronouncement of Decisions and Its Consequences. In: From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-01189-5_6
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