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Investor Presentaiton

187 Available 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 UNCTAD Series on International Investment Agreements II
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