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The Foundations of International Investment LawBringing Theory into Practice$
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Zachary Douglas, Joost Pauwelyn, and Jorge E. Viñuales

Print publication date: 2014

Print ISBN-13: 9780199685387

Published to Oxford Scholarship Online: August 2014

DOI: 10.1093/acprof:oso/9780199685387.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 17 January 2022

No Right Without a Remedy: Foundations of Investor-State Arbitration

No Right Without a Remedy: Foundations of Investor-State Arbitration

(p.234) (p.235) 8 No Right Without a Remedy: Foundations of Investor-State Arbitration
The Foundations of International Investment Law

Sergio Puig

Oxford University Press

This chapter analyses the remedy of international investment law to enforce a breach. It argues that the remedy is subject to different conceptualizations that may affect the way in which adjudicators understand what type of right is conferred on investors when granted the direct invocation of responsibility against a host state. It considers debate surrounding the operation of the circumstances precluding wrongfulness for the breach of an investment treaty by characterizing a conduct as a countermeasure in response to an anterior breach by a home state. Or — in simpler terms — the debate regarding to whom international countermeasures are opposable. Using this debate the chapter shows that the different justifications relied upon to promote investor-state arbitration as the main remedy of bilateral investment treaties (BITs) allow at least three different understandings of that question and, by implication, different relational dimensions of remedy. These different conceptualizations emphasize investor-state arbitration as enabling (primarily) one of the following functions of legal remedies: (a) procedural justice; (b) corrective justice; or, (c) deterrence.

Keywords:   investment arbitration, investment treaties, legal remedies, procedural justice, corrective justice, deterrence

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