Awarding Damages or Demanding Performance? A Performance-Oriented Approach for International Investment Law

14 Pages Posted: 25 Oct 2014 Last revised: 25 Apr 2017

Date Written: October 24, 2014

Abstract

This paper examines two different approaches to judicial protection of entitlements in international economic law. One of them, ‘performance-oriented’, is applied by WTO adjudicators. Performance-oriented remedies focus on inducing wrongdoers to resume compliance with the underlying substantive rules. The other, ‘reparation-oriented’, is applied overwhelmingly in international investment law. Reparation-oriented remedies aim at offsetting the injury caused to private parties by the wrongful conduct. This paper discusses the utility of performance-oriented remedies within WTO law, and assesses the possibilities for otherwise reparation-oriented investment tribunals to have recourse to these remedies. It examines a number of decisions that, it is argued, favor performance over pecuniary compensation. From the viewpoint of the state found in breach, compensation then appears as a threatened sanction for non-compliance with the performance obligations determined.

Suggested Citation

Vidigal, Geraldo, Awarding Damages or Demanding Performance? A Performance-Oriented Approach for International Investment Law (October 24, 2014). FGV Direito SP Research Paper Series (Special Edition). Available at SSRN: https://ssrn.com/abstract=2514538 or http://dx.doi.org/10.2139/ssrn.2514538

Geraldo Vidigal (Contact Author)

University of Amsterdam ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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