Is it Always All About the Money? The Appropriateness of Non-Pecuniary Remedies in Investment Treaty Arbitration

This article assesses the notion that damages are invariably the most appropriate remedy in investment disputes, by reference to relevant principles of the international law of remedies and arbitral jurisprudence. There is little authority for the award of restitution or specific performance of contractual or other rights which have been terminated by means of a sovereign act. However, decisions of investment tribunals indicate that restitution or specific performance can be ordered against a defaulting state when the investor's contractual or other rights remain in force. Indeed, provisional measures may be warranted to preserve claimants' access to such remedies. Tribunals also increasingly see the merit in granting remedies which preserve the viability of the investment and the relationship between the investor and the host state. Damages awards, being retrospective, are not the most appropriate means of achieving such ends. Thus, there is a growing trend in favour of a fuller use of remedies, not merely to provide financial redress for past wrongs, but as a tool for preserving and regulating investor-state relationships.