The Conceptual Framework For Remedies - 1305 Words

First, the conceptual framework for remedies in the two systems is fundamentally different. In Investor-state state entities and treaty obligations are involved. But, again, the model is plainly one of corrective justice. Whereas the goal of the WTO system is to liberalize trade flows and thereby achieve systemic efficiency and welfare gains, investment protection treaties are concerned with the protection and promotion of foreign investment. As one commentator put it, â€Å"the traditional investment regime is about fairness grounded in customary rules on treatment of aliens, not efficiency. It is about protection, not liberalization, and about individual rights, not state exchanges of market opportunities.† The primary relief in the WTO is†¦show more content†¦Examples of non-pecuniary relief are particularly rare in investor state arbitration. In the vast majority of cases, investors request damages, as opposed to non-pecuniary relief. This preference for damages often reflects practical considerations, such as the difficulty of obtaining restitution of property that has already been liquidated. Moreover, the filing of an investor-state arbitration often signals the end of the relationship between the parties; investors may fear that they can no longer operate in what is perceived to be a hostile environment. In many cases, restoring the status quo ante by ordering a State to rescind a tax regulation or restore confiscated property may be of little use. Non-pecuniary awards against States may also face enforcement difficulties. The State’s court system may be unwilling or unable to enforce an award of specific performance or restitution against its own government. Moreover, whereas the Washington Convention requires all contracting members to enforce the pecuniary obligations of ICSID awards as they would domestic court decisions, this obligation does not apply to non-pecuniary awards. These practical concerns are often allied with more theoretical concerns for state sovereignty. Although several tribunals have affirmed the authority of