Investor Presentaiton
187
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remedies
Costs of
arbitration
attend hearings. One aspect to consider, given
States' dual roles as treaty negotiators and as
disputing parties, is concerns about due process,
which are especially acute when interpretive
steps are taken during on-going cases.
To improve predictability and control over
the arbitration process, States may want to list the
permissible remedies that tribunals may award
under an IIA (e.g., monetary compensation,
interest and restitution of property) and/or
specifically prohibit tribunals from awarding
certain kinds of remedies (in particular, punitive
damages or orders to repeal or modify internal
legislative/administrative acts). Although in
practice tribunals only rarely award non-
monetary relief, specifying in the IIA that the
tribunal lacks that authority could prevent
potentially costly and time-consuming arguments
about the tribunal's power in that regard.
It may be useful to set out in the IIA the rules
regarding the distribution of arbitration costs and
legal fees in order to avoid the uncertainty that is
inherent in the arbitral rules. The latter leave a
wide margin of discretion to the arbitral tribunal.
An IIA can specifically require that each party to
the dispute shall bear its own costs and fees, or
that the losing party shall pay the costs and fees.
Arbitrators' fees can be controlled by reference to
a specific fee schedule in the absence of party
agreement on the appropriate amount. The IIA
could also distinguish between attorneys' fees
and other costs, and allocate responsibility for
each differently, such as providing that costs be
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