Lack of Definition of Compensation in International Investment Disputes for Non-Expropriation Claims: Is There an Appropriate Mechanism to Determine it?

The principle of full compensation restates the right of the investor to be repaired in the losses he has suffered as a consequence of a wrongful act by the State. The guarantee of this principle is in the core of international investment law and should be in the investment dispute resolution. Howev...

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Autores:
Arias Barrera, Ligia Catherine
Tipo de recurso:
Article of journal
Fecha de publicación:
2011
Institución:
Universidad Externado de Colombia
Repositorio:
Biblioteca Digital Universidad Externado de Colombia
Idioma:
spa
OAI Identifier:
oai:bdigital.uexternado.edu.co:001/10034
Acceso en línea:
https://bdigital.uexternado.edu.co/handle/001/10034
https://revistas.uexternado.edu.co/index.php/emerca/article/view/3049
Palabra clave:
International Investment Disputes
Non-expropriation claims
NAFTA
ICSID
Energy Chapter Treaty
Principle of full compensation.
Rights
openAccess
License
http://purl.org/coar/access_right/c_abf2
Description
Summary:The principle of full compensation restates the right of the investor to be repaired in the losses he has suffered as a consequence of a wrongful act by the State. The guarantee of this principle is in the core of international investment law and should be in the investment dispute resolution. However, its application has been subject to different criteria and arbitrators have not used common parameters. Instead, each case has shown the tribunals’ creativity regarding the methodology of compensation to apply.The structure followed is as follows: Firstly, the principle of full compensation applicable to international state responsibility and the key aspects of State liability in three main legal systems. Secondly, the analysis of some relevant awards based on non-expropriation claims including NAFTA, ICSID and Energy Chapter Treaty cases. The aim is to determine whether the principle of full compensation has been applied by arbitrators. Finally, to propose some general parameters to determine compensation in non-expropriation claims and to avoid entry into conflict with the three main liability systems studied, i.e French, German and English.