More information is available about the panelists at: https://harvardilj.org/symposium/about/panelists/
The second panel of ILJ’s 2013 symposium consisted of distinguished academics and practitioners with years of experience in investment arbitration. The panelists discussed remedies and damages in investment arbitration, and in particular the availability and desirability of primary remedies.
Professor van Aaken, from the University of St. Gallen, presented an overview of the types of remedies offered in public international law, commenting on the apparent peculiarity of the investment regime which generally offers only secondary remedies as opposed to other international public law regimes, such as trade and human rights, which offer predominantly primary remedies such as restitution and declaratory relief. Both states and investors seem to prefer secondary remedies in investment arbitration cases. States view primary remedies as infringements on their sovereignty and investors prefer pecuniary awards as they are more easily enforceable. Professor van Aaken, however, noted that the advantages of primary remedies are lost by focusing exclusively on secondary remedies. These advantages include giving investors greater control within the domestic administrative and judicial systems as well as other branches of the government, and providing states with another option if the damages claimed are exceedingly high. Professor van Aaken recommended that investment arbitration tribunals could capture the advantages of both types of remedies by taking greater account of national legal systems and procedures. This would give greater levels of protection to the investor and also be more palatable to states.
Hamsel Pham, partner at White & Case, described various treaty provisions on permissible remedies, concluding that generally treaties are reluctant to force states to comply with non-pecuniary remedies. He discussed the few cases where ICSID had granted non-pecuniary remedies, concluding that this was a rare occurrence, partly because claimants rarely ask for primary remedies, and when they do tribunals are wary of granting them.
Janis Brennan, partner at Foley Hoag, discussed primary remedies in the context of interim and provisional measures within the international arbitration system. She discussed the differences between ICSID and UNCITRAL, whereby ICSID tribunals may only grant provisional measures but cannot grant an interim award whereas UNCITRAL has provisions to grant an interim award by order. However, according to her, this distinction may not matter for enforceability purposes.
Brennan also discussed the tension between sovereignty implications versus “arbitrator activism” that has colored the investment arbitration system, and given rise to concerns that states will increasingly exit the system if they perceive it to threaten their regulatory authority. A controversial case in this respect was Chevron v. Ecuador, where Chevron has asked a UNCITRAL tribunal to order Ecuador to suspend a domestic court’s judgment, which the company has refused to appeal. Ecuador has argued that it cannot demand that its judiciary not enforce a judgment that is otherwise valid. The implications of this and other similar cases on the investment arbitration system as a whole remain to be seen.