Investor Presentaiton
144
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
Certain IIAs eliminate the possibility of non-pecuniary remedies
by imposing a limitation on the relevant power of tribunals. The
growing trend has been to limit the remedies available to claimants
to two forms monetary damages and restitution of property, with
the latter often subject to the condition that a respondent State can
choose to pay compensation instead of returning the property. An
illustrative example can be found in Article 137(9) of the China-
Peru FTA (2009):
"7. 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."
Similar provisions can be found in other IIAS. 169 This type of
provision effectively prevents tribunals from declaring that the host
country law is void, from ordering the respondent State to withdraw
or amend a measure challenged by an investor, or from requiring the
host country to take a particular remedial action other than the
payment of compensation.
Some tribunals have accepted this limitation even in the absence
of explicit language in the applicable IIA. Thus, in LG&E v.
Argentina, where the claimants requested, as one of their alternative
claims, that the tribunal order Argentina to re-establish its pre-
breach legislative framework, the tribunal responded:
169 See, for example, the Malaysia-New Zealand FTA (2009), Article
10.27; ASEAN Comprehensive Investment Agreement (2009), Article
41(2); Mexico-Singapore BIT (2009), Article 18(1); Rwanda-United States
BIT (2008), Article 34(3); NAFTA, Article 1135(1); Brunei-Japan FTA
(2009) Article 67(20)(b).
UNCTAD Series on International Investment Agreements IIView entire presentation