Part III Remedies, 11 Remedies in Customary International Law

Subject(s):

Expropriation — Investor — Standards of treatment — Customary international law — Compensation — Reparations — Restitution

This chapter examines the remedies for international wrongful acts under customary international law and how they can apply to cases of expropriation in investment treaty arbitrations in two instances. It first considers the two principal sources of customary international law for remedies in investment treaty arbitration, namely: the Chorzow Factory case and the ILC Articles. The Chorzow Factory case distinguishes between lawful expropriation and expropriation which is illegal, wrongful, or unlawful, and the consequences that follow: for lawful expropriation, the remedy is the treaty standard of compensation; for unlawful expropriation, the remedy is full reparation. The chapter also explains the relevant provisions of the ILC Articles with regard to reparation (restitution, compensation and satisfaction), interest, contribution and moral damages. A number of cases dealing with these various remedies are discussed.