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Title: The case for tailor-made remedies in investor-state arbitration and a mechanism to implement them
Author: Onwuamaegbu, Ucheora
ISNI:       0000 0004 8500 6689
Awarding Body: King's College London
Current Institution: King's College London (University of London)
Date of Award: 2019
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The present system of investor state arbitration is under criticism. This stems mostly from the impact of the awards of the tribunals, which are often considered excessive and or obstructive of the state's regulatory powers. This research advances the thesis that a shift in the focus of arbitral awards would help restore faith in the system and thereby its legitimacy. The need for this is based on the indisputable fact that a neutral forum for the resolution of disputes between governments and foreign investors would encourage the flow of cross-border investments, which is critical for the economic development of states. The proposal here is two-fold. First is for greater focus on the granting of tailor-remedies that address the particular circumstances of the parties, the dispute and the investment. The second is the introduction of a mechanism to follow up on awards to ensure the implementation of the remedies awarded. The tailor-made remedy could be financial or non-pecuniary. For pecuniary awards, they could be outright compensation or a financial award with directions on the utilization of the funds awarded. In determining the nature of the remedy, the tribunal would have to apply public interest considerations. It is argued that the remedy could only be considered just if it serves the interest of not only the disputing parties, but also the interest of the public, especially, in the host state of the investment. The follow-up mechanism, which would ideally be institutional, would go a long way in obviating the need for enforcement and related proceedings. Effective implementation of this proposal would require the agreement and participation of the parties. The best way to achieve this is by incorporating relevant provisions in the typical instruments of consent to arbitration, namely, investment contracts, laws and treaties.
Supervisor: Ortino, Federico Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available