Non-pecuniary remedies: a missed opportunity?

bradfield, michelle; j.c. thomas;

In the authors� view, the present focus in investment treaty arbitration on pecuniary remedies to the virtually complete exclusion of non-pecuniary remedies is somewhat surprising given a tribunal�s power to award the latter and in light of the expectations of the drafters of the Convention on the Settlement of Investment Disputes
between States and Nationals of Other States (ICSID Convention) that non-pecuniary remedies would be a routine feature of the remedial powers of the Tribunal of the International Centre for Settlement of Investment Disputes. This article explores the underlying reasons for the present situation, by examining the treatment of non-pecuniary
remedies in public international law, in investment treaties, in the ICSID Convention and in investor-State arbitral case law. It is clear that tribunals have the power to grant nonpecuniary remedies, yet they rarely do so. The case law suggests that a combination of
factors, including concerns about infringing on the sovereignty of States, consent, enforceability and the general workability of fashioning non-pecuniary relief, as well as claimants� preference for pecuniary relief, have led disputing parties and tribunals alike to
overlook the potential benefits of crafting different forms of relief that might resolve disputes in a more constructive fashion. As a means of testing the workability of nonpecuniary relief, this article takes a look at the experience of the World Trade Organization (WTO) system. This system provides interesting lessons for the investment treaty world because it is one that enforces international law obligations without relying on pecuniary remedies. It turns out that the track record of losing States� compliance with the �recommendations� of WTO panels is quite good. In a system that is currently the subject
of much debate and not insignificant criticism, the use of non-pecuniary remedies, while not the panacea, could contribute to creating a more sustainable system.