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

Abstract

This Article explores a fundamental aspect of modern international investment law: its remedy to enforce a breach. I argue that investor-state arbitration is subject to different conceptualizations that may animate the way in which adjudicators understand what type of right is conferred to investors when granted the invocation of responsibility against a host state. I explore the consequences of the three distinct conceptualizations (i.e., direct right, beneficiary right, or agency) by reference to the current debate regarding to whom countermeasures are opposable under international law. I show how the three dimensions imply that the construction of substantive law entails important assumptions about the procedures that will apply when that substantive law is ultimately enforced. In this sense, the Article evidences some of the methodological limitations of the ‘procedural-substantive’ distinction often encountered in international law analysis.

Keywords: arbitration, investor-state, international investment law, remedy