Non-Pecuniary Remedies Revisited Expanding Influence of The ILC Articles

ICSID Review, Vol. 37, No. 1-2 (2022), pp.
313–338
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20TH ANNIVERSARY OF ARSIWA
Non-Pecuniary Remedies Revisited:
Expanding Influence of the ILC Articles?
Michelle Bradfield1 and David Attanasio2
Abstract—Although non-monetary remedies for international law violations are a fix-

ture of the International Law Commission’s Draft Articles on Responsibility of States
for Internationally Wrongful Acts (ILC Articles), investor-State arbitral tribunals have
considered or ordered such remedies only rarely. This article surveys the role that the
ILC Articles on non-monetary remedies have, and could have, in investor-State arbitra-
tion. It first reviews how tribunals have referenced and applied the ILC Articles, or the
legal principles it codifies, when grappling with their power to award non-monetary reme-
dies, the specific content of such non-monetary remedies, and the reasons not to award
such remedies. It concludes that, while the ILC Articles have increasing significance,
tribunals remain hesitant to award the full range of remedies provided for in the ILC
Articles. The article then addresses considerations beyond the ILC Articles that tribunals
have referenced in decisions on non-monetary remedies—usually as grounds to reject
non-monetary remedies. The most common is concern for the effects of such remedies
on State sovereignty, but considerations less frequently raised include questions about
enforceability and the need for party consent. These features indicate that some tribunals
remain willing to go beyond the ILC Articles in reaching decisions on non-monetary
remedies. The article finally considers what lessons may be gleaned from human rights
practice on non-monetary remedies. By contrast with investor-State tribunals, human
rights adjudicators have enthusiastically embraced non-monetary remedies and their
practice provides insights for how such remedies may be employed in disputes between
private individuals and sovereign States.
I. INTRODUCTION
In a 2015 article on the treatment of non-pecuniary remedies in treaty-based investor-
State arbitration,3 one of the present authors concluded that the general failure to
consider non-pecuniary remedies was a missed opportunity for dispute resolution.
1
Partner, Jones Day, London, United Kingdom. Email: [email protected]. The opinions expressed
herein are those of the author alone and not of Jones Day.
2
Associate, Dechert LLP, Washington, DC, USA. Email: [email protected]. The opinions expressed
herein are those of the author alone and not of Dechert LLP. The author takes no view on the substance of any case
involving present or former clients.
3
Michelle Bradfield and JC Thomas, ‘Non-Pecuniary Remedies: A Missed Opportunity’ (2015) 30(3) ICSID Rev—
FILJ 635–64.
© The Author(s) 2022. Published by Oxford University Press on behalf of ICSID. All rights reserved.
For permissions, please e-mail: [email protected]
314 ICSID Review VOL. 37 1-2
Revisiting the topic five years later and updating the prior analysis,4 the situation
has changed in complex ways. While orders for non-pecuniary remedies remain
infrequent—and indeed even requests for them are not common—notable tribunals
have elected to order non-pecuniary remedies and to do so without providing pecu-
niary compensation as an alternative. However, it is also still the case that tribunals
have declined to order non-pecuniary remedies, often citing concerns about the pro-
portionality of non-pecuniary awards, and of making inappropriate incursions into
state sovereignty, or being seen to have done so.
The continued lack of enthusiasm for non-pecuniary remedies among investor-
State tribunals reflects a notable disparity with the legal position under the Inter-
national Law Commission’s Draft Articles on the Responsibility of States for
Internationally Wrongful Acts (ILC Articles). The ILC Articles provide that the
responsible party must make full reparation for its internationally wrongful act. They
further specify that the non-pecuniary remedy of restitution is the primary form in
which reparation must be made, and that other non-pecuniary remedies may be
necessary to accomplish full reparation.
However, the practical reality is that investor-State tribunals do not often order
the non-pecuniary remedies afforded by the ILC Articles including because they are
not asked to issue such remedies. This reality is particularly striking given that some
such tribunals also acknowledge that they have the power, in principle, to order such
remedies. Indeed, tribunals have not fully grappled with whether and when ordering
non-pecuniary remedies may be necessary to accomplish full reparation of an inter-
nationally unlawful action taken against a foreign investor. Thus, in many regards, it
remains an open question how the international law of remedies applies in the context
of investor-State disputes.
We have undertaken a detailed, if not exhaustive, examination of decisions that
have addressed non-pecuniary remedies to date. In total, 36 decisions5 that examined
4
This article incorporates parts of the text and analysis from the prior article, especially those that focus on the
treatment of non-pecuniary remedies by investor-State tribunals. We have not repeated the discussion of investment
treaty practice, the lessons that may be gleaned from the WTO regime, or our final practical recommendations, as these
have been largely unaffected by more recent developments. We recommend that the interested reader consult the prior
article on these points. The opinions expressed in that article, however, are solely those of its authors.
5
Antoine Goetz and others v Republic of Burundi, ICSID Case No ARB/95/3, Award (10 February 1999); Nykomb
Synergetic Technology Holding AB v The Republic of Latvia, SCC Case No 118/2001, Final Award (16 December 2003);
Enron Creditors Recovery Corporation (formerly Enron Corporation) and Ponderosa Assets, LP v Argentine Republic, ICSID
Case No ARB/01/3, Decision on Jurisdiction (14 January 2004); CMS Gas Transmission Company v Argentine Republic,
ICSID Case No ARB/01/8, Award (12 March 2005); Petrobart Limited v The Kyrgyz Republic, SCC Case No 126/2003,
Award (29 March 2005); EnCana Corporation v Republic of Ecuador, LCIA Case No UN3481, Award (3 February 2006);
ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary, ICSID Case No ARB/03/16, Award
(2 October 2006); LG&E Energy Corp, LG&E Capital Corp and LG&E International Inc v Argentine Republic, ICSID
Case No ARB/02/1, Decision on Liability (26 September 2006); LG&E Energy Corp, LG&E Capital Corp and LG&E
International Inc v Argentine Republic, Case No ARB/02/1, Award (25 July 2007); Occidental Petroleum Corp & Occidental
Exploration & Production Co v Republic of Ecuador, ICSID Case No ARB/06/11, Decision on Provisional Measures (17
August 2007); Biwater Gauff (Tanzania) Limited v United Republic of Tanzania, ICSID Case No ARB/ 05/22, Award (24
July 2008); Ioan Micula, Viorel Micula and others v Romania, ICSID Case No ARB/05/20, Decision on Jurisdiction and
Admissibility (24 September 2008); Ioan Micula, Viorel Micula and others v Romania, ICSID Case No ARB/05/20, Award
(11 December 2011); Bernardus Henricus Funnekotter and Others v Republic of Zimbabwe, ICSID Case No ARB/05/6,
Award (22 April 2009); Waguih Elie George Siag & Clorinda Vecchi v Arab Republic of Egypt, ICSID Case No ARB/05/15,
Award (1 June 2009); Burlington Resources Inc v Republic of Ecuador, ICSID Case No ARB/ 08/5, Procedural Order No
1 on the Request for Provisional Measures (29 June 2009); Saipem SpA v People’s Republic of Bangladesh, ICSID Case
No ARB/05/7, Award (30 June 2009); Sistem Mühendislik Insaat Sanayi ve Ticaret A v Kyrgyz Republic, ICSID Case
No ARB/(AF)/06/1, Award (9 September 2009); Ron Fuchs v Republic of Georgia, ICSID Case Nos ARB/05/18 and
ARB/07/15, Award (3 March 2010); Mohammed Ammar Al-Bahloul v Republic of Tajikistan, SCC Case No V(064/2008),
Final Award (8 June 2010); ATA Construction, Industrial and Trading Company v Hashemite Kingdom of Jordan, ICSID
Case No ARB/08/2, Award (18 May 2010); Quiborax SA, Non Metallic Minerals SA and Allan Fosk Kaplún v Plurinational
State of Bolivia, ICSID Case No ARB/06/2, Decision on Jurisdiction (27 September 2012); Vannessa Ventures Ltd v
Bolivarian Republic of Venezuela, ICSID Case No ARB(AF)/04/6, Award (16 January 2013); Frank Charles Arif v Republic
of Moldova, ICSID Case No ARB/11/23, Award (8 April 2013); Achmea BV v The Slovak Republic, UNCITRAL, PCA
Case No 2013–12, Award on Jurisdiction and Admissibility (20 May 2014); Valeri Belokon v Kyrgyz Republic, PCA Case
No AA518, Award (24 October 2014); Quiborax SA and Non Metallic Minerals S.A. v Plurinational State of Bolivia, ICSID
Non-Pecuniary Remedies and the ILC Articles 315
non-pecuniary remedies were identified. In addressing the lack of attention that non-
pecuniary remedies have attracted, we explore in Section II the limited investor-State
case law that discusses non-pecuniary remedies and the reliance, or not, that is placed
on the ILC Articles. We take the view that the ILC Articles, or the underlying inter-
national law principles they espouse, have been increasingly influential in many of
these decisions. Section III examines other issues and themes prevalent in the deci-
sions surveyed, but not deriving from the ILC Articles themselves, often invoked in
support of the decision not to order non-pecuniary remedies. The result of these
other themes is that investor-State decisions are often in tension with the nominal
commitment of the ILC Articles to monetary compensation as a secondary remedy.
Section IV of this article compares the approaches to non-pecuniary remedies
in the investment treaty sphere with those in another international regime—that of
international human rights. Many of the most prominent adjudicatory bodies in the
field of international human rights regularly order or recommend complex sets of
non-pecuniary remedies when resolving disputes between private individuals and
sovereign States. The article proposes that practitioners in investor-State arbitra-
tion may draw some relevant lessons or inspiration from the developed practice of
non-pecuniary remedies in the international human rights regime.
II. THE RELIANCE BY TRIBUNALS ON THE ILC

ARTICLES TO EVALUATE NON-PECUNIARY
REMEDIES
Many of the surveyed awards invoked the ILC Articles to support their analysis of the
available non-pecuniary remedies, while others invoked certain of the international
law concepts that were codified in the Articles. These Articles were adopted by the
ILC on 9 August 2001 and subsequently ‘welcomed’ by the UN General Assembly
and ‘commended’ to the attention of governments, without prejudice to the ques-
tion of their future adoption or other appropriate action.6 The Articles provide that a
State that is responsible for an internationally wrongful act is under remedial obliga-
tions ‘to cease that act, if it is continuing’ and ‘to make full reparation for the injury
caused’.7 Thus, the obligation to cease the wrongful act requires both its cessation
and provision of assurances and guarantees of non-repetition, while the obligation
of full reparation may be satisfied through measures of restitution, compensation or
satisfaction.
Case No ARB/06/2, Award (16 September 2015); Bernhard von Pezold and others v Republic of Zimbabwe, ICSID Case
No ARB/10/15, Award (28 July 2015); Eiser Infrastructure Limited and Energía Solar Luxembourg Sàrl v Kingdom of Spain,
ICSID Case No ARB/13/36, Award (4 May 2017); Masdar Solar & Wind Cooperatief UA v Kingdom of Spain, ICSID
Case No ARB/14/1, Award (16 May 2018); Infrastructure Services Luxembourg Sàrl and Energia Termosolar BV v Kingdom
of Spain, ICSID Case No ARB/13/31, Award (15 June 2018); Mobil Investments Canada Inc v Canada, ICSID Case No
ARB/15/6, Decision on Jurisdiction and Admissibility (13 July 2018); Chevron Corporation (USA) and Texaco Petroleum
Corporation (USA) v Republic of Ecuador II, PCA Case No 2009–23, Second Partial Award on Track II (30 August
2018); RWE Innogy GmbH and RWE Innogy Aersa SAU v Kingdom of Spain, ICSID Case No ARB/14/34, Decision on
Jurisdiction, Liability and Certain Issues of Quantum (30 December 2019); Watkins Holdings Sàrl and others v Kingdom of
Spain, ICSID Case No ARB/15/44, Award (21 January 2020); Cairn Energy PLC and Cairn UK Holdings Limited (CUHL)
v Government of India, PCA Case No 2016–7, Award (21 December 2020).
6
United Nations General Assembly Res 56/83 (56th Session) (2002). As such, the Articles are not themselves
legally binding but are a ‘codification and progressive development of the law concerning the responsibility of States’.
International Law Commission, ‘Draft Articles on the Responsibility of States for Internationally Wrongful Acts with
Commentaries’, UN GAOR 56th Session Supp 10, ch 4, UN Doc A/56/10 (2001) (ARSIWA) General Commentary.
7
ARSIWA (n 6) art 31.
The ILC Articles define these obligations in the following terms:
• Article 30 (Cessation and Non-repetition): ‘The State responsible for the inter-
nationally wrongful act is under an obligation: (a) to cease that act, if it is con-
tinuing; (b) to offer appropriate assurances and guarantees of non-repetition, if
circumstances so require.’
• Article 35 (Restitution): ‘A State responsible for an internationally wrongful
act is under an obligation to make restitution, that is, to re-establish the situa-
tion which existed before the wrongful act was committed, provided and to the
extent that restitution: (a) is not materially impossible; (b) does not involve a
burden out of all proportion to the benefit deriving from restitution instead of
compensation.’
• Article 36 (Compensation): ‘1. The State responsible for an internationally
wrongful act is under an obligation to compensate for the damage caused
thereby, insofar as such damage is not made good by restitution. 2. The com-
pensation shall cover any financially assessable damage including loss of profits
insofar as it is established.’
• Article 37 (Satisfaction): ‘1. The State responsible for an internationally wrong-
ful act is under an obligation to give satisfaction for the injury caused by that
act insofar as it cannot be made good by restitution or compensation. 2. Sat-
isfaction may consist in an acknowledgement of the breach, an expression of
regret, a formal apology or another appropriate modality. 3. Satisfaction shall
not be out of proportion to the injury and may not take a form humiliating to
the responsible State.’
Our survey of published decisions revealed that 36 investor-State arbitrations have

touched on the issue of non-pecuniary remedies and only a minority have ordered
such remedies. In considering these remedies, tribunals differ in their reliance on
the ILC Articles, with some tribunals omitting any reference to the ILC Articles,
often in favour of other international law authorities reflecting the same or similar
legal principles. However, those tribunals that have awarded non-pecuniary remedies
have generally done so in line with the principles of the ILC Articles, whether or
not they relied heavily on the Articles themselves. That said, a number of tribunals
that have rejected non-pecuniary remedies have invoked themes not present in the
ILC Articles—this is the subject of Section III. The overall practice of investor-State
tribunals is therefore in tension with the nominal emphasis that the ILC Articles place
on certain non-pecuniary remedies such as restitution.
This section provides a general review of the treatment that investor-State decisions
have given to the ILC Articles when fashioning non-pecuniary remedies. We first
consider whether the ILC Articles are binding in investor-State disputes. We next
survey the investor-State decisions that examine the power of tribunals, in principle,
to grant non-pecuniary remedies, whether or not the remedies are called for in the
particular circumstances of a given dispute. We then provide a review of investor-
State decisions and their reliance on the ILC Articles when determining which, if
any, specific non-pecuniary remedies are appropriate in the circumstances and on
the facts of a particular dispute. We finally address the major potential defences from
the ILC Articles that tribunals have considered—favourably or otherwise—in relation
to an award of non-pecuniary remedies.
A. Are the ILC Articles Applicable in Investor-State Arbitrations?

A preliminary question is the extent to which the ILC Articles ought to be relied on
by investment treaty tribunals, given that they were elaborated with specific regard
to State–State disputes. Tribunals in various investor-State disputes have relied on
the ILC Articles to determine the non-pecuniary remedies that are available and
appropriate. Some have said that they are non-binding,8 while others have declared
that they authoritatively restate the established principles of customary international
law on this point.9 It is common, however, for tribunals to rely on the ILC Articles
without clarifying their precise legal status and relevance. For example, the ICSID
Tribunals in von Pezold v Zimbabwe relied extensively on article 35 of the ILC Articles
concerning restitution in deciding to order the restitution of the expropriated invest-
ment.10 They made the observation that ‘[a]lthough this dispute arises between an
investor and a State, it is apparent that the ILC Articles will be of considerable guid-
ance to this Tribunal’.11 The UNCITRAL Tribunal in Chevron v Ecuador took the
full set of the ILC Articles on the consequences of international responsibility as a
starting point in an analysis that resulted in ordering the Respondent State to deprive
a domestic court judgment of legal effect and enforceability.12
Despite this practice in various investor-State disputes of invoking the ILC Arti-
cles, some have questioned their application outside of State–State disputes. One
noteworthy commentator has asserted that tribunals must appreciate that an ‘uncrit-
ical transplantation of secondary rules that govern, inter alia, the consequences of a
diplomatic protection claim between two State parties is inappropriate’.13 The Quib-
orax v Bolivia case reflected this perspective. This ICSID Tribunal did not challenge
its power to award non-pecuniary remedies in principle, even in the form of the
measures of satisfaction that the Claimants had sought.14 However, the Tribunal
did question whether the ILC Articles were directly applicable, as a general matter,
to investor-State disputes and especially article 37 concerning measures of satisfac-
tion.15 It then took the position that ‘[i]nternational case law strongly suggests that
some types of satisfaction are a remedy exclusively designed for States’ and therefore
held that measures of satisfaction are ‘not applicable in investor-State disputes’.16
B. The Power of an Investor-State Tribunal to Grant Non-Pecuniary Remedies

To address non-pecuniary remedies, tribunals have sometimes either explicitly or
implicitly accepted that they had the power, in principle, to grant non-pecuniary
remedies, independently of the appropriateness of such remedies in particular cir-
cumstances. These tribunals have commonly invoked the ILC Articles albeit giving
varying significance to them: some have indicated that the Articles are key to the
8
See eg Al-Bahloul v Tajikistan (n 5) para 42, noting ‘[a]lthough without binding legal force, the ILC Articles are
widely viewed as the most authoritative statement of the law in this area that exists today’.
9
Nykomb v Latvia (n 5) 5.1.
10
von Pezold v Zimbabwe (n 5) paras 723ff. The Tribunals did, however, observe that ‘[a]lthough this dispute arises
between an investor and a State, it is apparent that the ILC Articles will be of considerable guidance to this Tribunal’
(ibid para 691).
11
ibid paras 690–91.
12
Chevron v Ecuador (n 5) paras 9.6, 9.9.
13
Zachary Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74(1) BYIL 151, 189.
14
Quiborax v Bolivia, Decision on Jurisdiction (n 5) para 308.
15
Quiborax v Bolivia, Award (n 5) para 555.
16
issue of the tribunal’s power, whereas others have placed more emphasis on factors
such as the mandate of the tribunal to resolve the dispute. However, the majority of
these tribunals failed to provide a detailed analysis of the position. Enron v Argentina
and Micula v Romania contain the most extensive discussions of the power to grant
non-pecuniary remedies. Other tribunals have also discussed the issue, albeit in less
depth.
In Enron v Argentina, the Claimant argued that a tax assessment relating to the
privatization of a gas transportation network, in which it had an interest through
a subsidiary, was illegal under Argentine law and amounted to an expropriation
in violation of the USA–Argentina BIT.17 Enron requested that the taxes assessed
be annulled and the collection of the taxes be permanently prohibited. Argentina
asserted that the Tribunal had no power to issue such injunctive relief. It argued that
the various ICSID and public international law cases relied upon by Enron were not
relevant and could be distinguished.18 However, the Tribunal disagreed and pointed
to a number of inter-State disputes to support the view that it had a broad power to
order injunctive relief and non-pecuniary remedies:
[a]n examination of the powers of international courts and tribunals to order measures con-
cerning performance or injunction and of the ample practice that is available in this respect,
leaves this Tribunal in no doubt about the fact that these powers are indeed available.19
The Tribunal considered that such powers are also available under the ICSID Con-
vention. In this regard, it relied on the fact that the Tribunal in Goetz v Burundi had
employed such a power in its award, reasoning that ‘the fact that it was based on a
settlement agreement between the parties does not deprive the decision of the Tri-
bunal of its own legal force and standing’.20 Although the Tribunal accepted it had
the power to order such relief, it is important to note that it was not ultimately called
upon to do so and therefore did not order any non-pecuniary relief.
One of the most comprehensive examinations of a tribunal’s power to grant non-
pecuniary remedies was undertaken in Micula v Romania. The Claimants’ initial
request sought restitution of the previous legal framework that had granted incentives
for investment in certain designated disfavoured regions or, alternatively, pecuniary
compensation. The Tribunal, in its Decision on Jurisdiction, considered that the
ICSID Convention granted it ‘the power to order pecuniary or non-pecuniary reme-
dies, including restitution, i.e., re-establishing the situation which existed before a
wrongful act was committed’.21 It held that restitution was not excluded by the fact
that the Swedish–Romanian BIT specifically mentioned compensation in relation to
expropriation and that the remainder of the BIT did not preclude an award of restitu-
tion.22 Additionally, and contrary to the Respondent’s argument, the Tribunal took
the view that the fact that such a remedy might not be enforceable, pursuant to article
17
Enron v Argentina (n 5). The Tribunal’s subsequent award was annulled on other grounds. Enron Corporation
and Ponderosa Assets LP v Argentina, Case No ARB/01/3, Decision on the Application for Annulment of the Argentine
Republic (30 July 2010). Treaty between the United States of America and the Argentine Republic Concerning Reciprocal
Encouragement and Protection of Investments (signed 14 November 1991, entered into force 20 October 1994).
18
Enron v Argentina (n 5) para 79.
19
ibid.
20
ibid para 80.
21
Micula v Romania, Decision on Jurisdiction and Admissibility (n 5) para 166.
22
ibid para 167. Treaty between the Kingdom of Sweden and the Government of Romania on the Promotion and
Reciprocal Protection of Investments (signed 22 November 2001, entered into force 1 April 2003).
54 of the ICSID Convention ‘should not preclude a tribunal from ordering it’ because
‘[r]emedies and enforcement are two distinct concepts’.23 The Tribunal therefore
rejected the objection to restitution as a matter of jurisdiction or admissibility.24
Later in the proceedings, the Claimants abandoned their restitution case but did
request post-award injunctive relief, asking the Tribunal to prevent the Respondent
from collecting further taxes until it had paid the damages awarded (and to include
a pecuniary alternative in case of non-performance). The Tribunal reaffirmed that
non-pecuniary relief can be granted and may take many forms, including ‘defini-
tive’ (that is, not provisional) injunctive relief.25 It referred to the ILC Articles and
to Enron v Argentina, but its real emphasis was on its mandate to resolve the legal
dispute between the parties by using its inherent powers. In the absence of anything
expressly preventing it from granting non-pecuniary remedies in the BIT, the ICSID
Convention or the Claimants’ requests, it stated that ‘its powers include all of those
required to provide effective remedy in order to redress the injuries suffered by the
Claimants as a result of such internationally wrongful acts’.26 However, in a foot-
note, the Tribunal also observed that ‘[i]n the state-to-state sphere, the ILC Articles
expressly recognize a tribunal’s power to grant nonpecuniary relief ’.27 Ultimately, the
Tribunal dismissed the post-award injunctive relief claim as the request was not made
at the appropriate time.28
By contrast, the UNCITRAL Tribunal in Cairn Energy v India only briefly
reviewed its power to order non-pecuniary remedies, before accepting it held such a
power, but made the ILC Articles the centrepiece of its analysis. It relied specifically
on article 34 of the ILC Articles, which defines the categories of remedies—
restitution, compensation and satisfaction—that may be necessary to provide full
reparation, as well as the commentary to that article, which specifies that provid-
ing full reparation may require one or more of those types of remedies depending
on the circumstances.29 It thus inferred from the fact that non-pecuniary remedies
are potentially necessary to achieve full reparation that an investor-State tribunal
has the power to order those non-pecuniary remedies. It then exercised this power
to order the requested non-pecuniary remedies—the withdraw of a demand for tax
payments.30
Certain tribunals have gone against those decisions that accept the power to order
non-pecuniary remedies. The Sistem Mühendislik v Kyrgyz Republic case involved
the abrogation of the Claimant’s rights under a series of contracts, which the Tri-
bunal described as ‘tantamount to an expropriation’.31 Although neither party had
requested restitution, the Tribunal, in the context of compensation, noted that:
it is questionable whether an arbitral tribunal has the power to order a State to restore
expropriated property to its original owner. In any event, restoration of expropriated prop-
erty is plainly no longer the primary judicial remedy in cases of expropriation, if it ever was.
23
24
ibid paras 166–68 (emphasis added).
25
Micula v Romania, Award (n 5) para 1311.
26
ibid para 1309.
27
ibid para 1311 n 293.
28
ibid para 1318. The request would also have been dismissed on the merits as the particular claims regarding the
legitimacy of the tax penalties did not succeed.
29
Cairn Energy v India (n 5) para 1872 [citing ARSIWA (n 6) art 34, commentary para 2].
30
ibid para 1877.
31
Sistem Mühendislik v Kyrgyz Republic (n 5) para 118.
Monetary compensation is the normal remedy, and its role is precisely ‘to take the place of
restitution’.32
The scope of the Tribunal’s observation on the power to order restitution is unclear;
the Tribunal may have been questioning whether such a power ever exists or, alterna-
tively, simply whether it existed under the particular circumstances of the dispute. If
the latter, it is worth noting that the Tribunal did not address the distinction between a
lawful and unlawful expropriation and how that might affect the power to order resti-
tution.33 Restitution is intended to remedy the consequences of a wrongful act and,
therefore, it will not be available in instances of lawful expropriation since the right
of States to expropriate foreign investments upon compliance with certain requisites
is clearly established in international law.34
More recently, the UNCITRAL Tribunal in Valeri Belokon v Kyrgyz Republic
avoided reaching a decision on its power to grant non-pecuniary remedies. That case
concerned the State’s expropriation of the Manas Bank as well as its pursuit of civil
and criminal investigations directed at the Claimant and others involved in the bank.
The Claimant requested that the Tribunal order the Respondent State to terminate
the investigations, withdraw search warrants against the Claimant and others, publish
a statement in local newspapers notifying that the allegations were withdrawn, and
inform foreign jurisdictions of the withdrawal.35 However, the Tribunal declined to
reach a decision as to whether it had the power to grant these forms of non-pecuniary
relief. It specifically took issue with the fact that it had not been directed to the ILC
Articles concerning satisfaction and assurances ‘of the form requested’, and there-
fore held that its authority to grant the relief had ‘not been sufficiently established in
these proceedings’.36 Thus, while the Tribunal left the ultimate question of its power
to grant such remedies unresolved, it did evince the view that the ILC Articles could
be relevant to this question.
C. The Content of Non-Pecuniary Remedies Granted in Investor-State

Arbitration
Despite somewhat frequent acceptance that tribunals have the power to order non-
pecuniary remedies and the nominal primacy of restitution in international law,
non-pecuniary remedies are rarely ordered in investor-State disputes.37 Neverthe-
less, there is a slowly expanding set of investor-State decisions that have taken the
step of awarding such remedies. Although these decisions do not always discuss the
ILC Articles in detail, the general approach that they have taken to determine what
specific non-pecuniary remedies to order is often consistent with the principles in
the ILC Articles. This consistency appears to result from the overall influence of
the international law principles codified in the ILC Articles, even when the Articles
32
ibid para 158.
33
The authors define an unlawful expropriation as being one that does not comply with the requirements set out in
the relevant treaty regarding expropriation and including compensation. As to the consequences that flow from a finding
of unlawful expropriation, for one view see the Award in Tidewater Investment SRL and Tidewater Caribe, CA v Bolivarian
Republic of Venezuela, ICSID Case No ARB/10/5, Award (13 March 2015) para 129ff.
34
Sergey Ripinsky and Kevin Williams, Damages in International Investment Law (BIICL 2008) 54.
35
Belokon v Kyrgyz Republic (n 5) para 273.
36
ibid para 275.
37
It has thus been stated that the significant constraints in restitution’s application means that ‘in practice, as far as
international investment disputes are concerned, it becomes a secondary remedy after compensation’. Sergey Ripinsky
and Kevin Williams, Damages in International Investment Law (BIICL 2008) 57.
themselves are not the focus of analysis. This section will consider how tribunals have
responded to requests for different types of non-pecuniary remedies—such as resti-
tution, cessation and satisfaction—including how their decisions relate to the ILC
Articles.
In investor-State disputes, the non-pecuniary remedy that is most commonly
sought is, by far, restitution. The ILC Articles have confirmed the position that resti-
tution is the primary remedy under international law, despite some past controversy
on this point.38 Article 35 of the ILC Articles provides that ‘[a] State responsible
for an internationally wrongful act is under an obligation to make restitution’. Arti-
cle 36 then provides for compensation: a responsible State ‘is under an obligation
to compensate for the damage caused thereby, insofar as such damage is not made
good by restitution’. Thus, compensation is nominally viewed as a secondary rem-
edy where restitution is not available, such as for one of the reasons identified in
article 35. While only a handful of the surveyed decisions highlighted this point,39
the nominal priority of restitution is sometimes acknowledged in decisions ordering
compensation. That said, even the commentary to the ILC Articles recognizes that
this theoretical primacy of restitution may often not apply in practice.40
The seminal decision frequently relied on by tribunals in this regard, either along-
side or instead of the ILC Articles, is the Permanent Court of International Justice’s
judgment in the Chorzów Factory case. The judgment also influenced the drafting of
the ILC Articles.41 In this case, the Permanent Court of International Justice stated:
[R]eparation must, as far as possible, wipe out all the consequences of the illegal act and
re-establish the situation which would, in all probability, have existed if that act had not been
committed. Restitution in kind or, if this is not possible, payment of a sum corresponding to
the value which a restitution in kind would bear.42
This case thus set forth the general structure43 of the remedial approach that the
ILC Articles subsequently codified, including the nominal priority of non-pecuniary
remedies in the form of restitution.
The ICSID Tribunals in von Pezold v Zimbabwe undertook the most detailed anal-
ysis of restitution as a remedy in investor-State arbitration, relying extensively on
article 35 of the ILC Articles. After recognizing the principle of full reparation and
that the primary remedy in international law is restitution,44 they considered the vari-
ous forms that restitution might take. Reflecting the Commentary to the ILC Articles,
they drew a key distinction between material restitution and juridical restitution.45
Material restitution, as they explained, ‘usually involves the returning of property,
whereas [juridical restitution] involves modifying the legal situation’.46 The Tribunals
further noted that restitution may include ‘the release of persons wrongly detained or
38
Christine Gray, ‘The Choice between Restitution and Compensation’ (1999) 10(2) EJIL 413.
39
eg, in Petrobart v Kyrgyz Republic (n 5) (discussed below), the Tribunal agreed with the Respondent State’s argument
that ‘specific performance is the primary remedy for a breach’, although it did not award such a remedy on the basis that
the contract had been frustrated. See also Texaco v Ecuador (n 5); von Pezold v Zimbabwe (n 5) para 682.
40
ARSIWA (n 6) art 36, commentary para 3.
41
Martin Endicott, ‘Non Pecuniary Remedies: The Impact of ARSIWA in Investor-State Arbitration’ (2007) 4(4)
Transnational Dispute Management 4, 9.
42
Factory at Chorzów (Merits), PCIJ Series A No 17 (13 September 1928) 47 (emphasis added).
43
However, the details of the approaches may differ in various regards.
44
von Pezold v Zimbabwe (n 5) paras 683–86.
45
Compare von Pezold v Zimbabwe (n 5) para 688 with ARSIWA (n 6) art 35, commentary para 5.
46
von Pezold v Zimbabwe (n 5) para 688.
the return of property wrongly seized’ as well as more complex actions.47 However,
they recognized that, pursuant to the terms of the ILC Articles, restitution is not
available as a remedy when it is materially impossible or gravely disproportionate to
its benefit48 —limitations addressed in the next section.
When the breach of international law has not concluded but instead is ongoing,
article 30 of the ILC Articles prescribes that the respondent State must cease its
wrongful act. This Article is also commonly invoked in investor-State disputes, in
part because it is not always clear whether to qualify a wrongful action as completed
or ongoing. The ICSID Tribunal in Mobil v Canada II observed that a prior tribunal
to address the same dispute had held that ‘the imposition and enforcement of the
2004 Guidelines [on mandatory research and development] was contrary to Article
1106’ of NAFTA.49 The Tribunal observed that, in light of that decision, ‘it [was]
difficult to see how Canada could discharge its duty to perform its obligations under
Article 1106 in good faith while still enforcing the Guidelines’, especially in light of
the obligation of a State to cease an internationally unlawful action.50 The Tribunal
then continued: ‘[t]hat conclusion is reinforced by the ILC Articles, Article 30 of
which provides that a State which is responsible for an internationally wrongful act is
under an obligation to cease that act if it is a continuing one’. However, the Tribunal
ultimately found it unnecessary to determine whether there was an ongoing breach
of NAFTA.51
In addition to cessation and restitution, article 37 of the ILC Articles provides
for measures of satisfaction—such as an acknowledgement of the breach or formal
apology—as a remedy insofar as the injury ‘cannot be made good by restitution or
compensation’. Measures of satisfaction have been addressed in investor-State dis-
putes on rare occasion. Both the first and the second ICSID Tribunals in Victor Pey
Casado v Chile considered such measures briefly and took the view that the first award
itself was a substantial form of moral satisfaction.52 No reference was made to the
ILC Articles in this respect. By contrast, the ICSID Tribunal in Quiborax v Bolivia
addressed the availability of satisfaction at greater length, and reached the conclusion
that ‘[i]nternational case law strongly suggests that some types of satisfaction are a
remedy exclusively designed for States’.53 It reasoned that the cases generally support
that satisfaction is ordered for injury to national sovereignty, insults to the symbols
of the State, or attacks on protected persons such as heads of State or diplomatic or
consular representatives.54
In practice, the non-pecuniary remedy sought or ordered in an investor-State dis-
pute, within the taxonomy of the ILC Articles, may not be made entirely clear.
Drawing from domestic legal practice, the parties or the tribunal may use other ter-
minology to describe the remedy, such as ‘injunction’ or ‘specific performance’, that
does not track the taxonomy of the ILC Articles. Further complicating the matter is
47
ibid 686 (quoting ILC Articles, art 35, para 1) (internal quotations omitted).
48
ibid paras 686, 689–90 [citing ARSIWA (n 6) art 35, commentary paras 8–11].
49
Mobil v Canada II (n 5) para 165.
50
ibid.
51
ibid. paras 172–73.
52
Victor Pey Casado and President Allende Foundation v Chile, ICSID Case No ARB/98/2, Award (8 May 2008) para
704; Victor Pey Casado v Chile, Award (13 September 2016) para 256(2); cf von Pezold v Zimbabwe (n 5) para 957
(awarding declaratory relief, which might be considered akin to a form of satisfaction).
53
54
ibid [citing Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania), ICJ, Judgment on the
Merits (9 April 1949) 35; ARSIWA (n 6) art. 37, commentary para 4].
that the ILC Articles provide for not only restitution but also cessation and assur-
ances or guarantees of non-repetition. While restitution concerns the restoration of
the situation prior to a completed unlawful act, cessation concerns the termination
of an ongoing unlawful act, and assurances or guarantees of non-repetition concerns
the avoidance of future recurrences of the unlawful act. While the actual content and
substance of the non-pecuniary remedy may be similar in all three cases, the ILC
Articles suggest a different legal treatment of each.55
This ambiguity is illustrated by the Chevron v Ecuador case. Although invoking
the ILC Articles, including the Articles on cessation and restitution, the UNCI-
TRAL Tribunal did not specify in which category the Claimants’ requested remedies
fell. These requests sought a range of non-pecuniary remedies aimed at depriving a
multibillion US dollar domestic court judgment of legal effect.56 Regarding these
requests, the Tribunal noted, without explicitly distinguishing between completed
and ongoing breaches, ‘that the Respondent breached its obligations, by a denial of
justice, in issuing the Lago Agrio Judgment, rendering it enforceable and maintaining
its enforceability by the Lago Agrio Plaintiffs’.57 It then concluded, without distin-
guishing between cessation and restitution, that ‘the reinstatement of the Claimants’
rights under international law requires of the Respondent the immediate suspension
of the enforceability of the Lago Agrio Judgment and the implementation of such
other corrective measures as are necessary to “wipe out all the consequences” of the
Respondent’s internationally wrongful acts’.58 Thus, the Tribunal made no clear sep-
aration of the ILC Articles categories of remedies for internationally wrongful acts
either in its reasoning or in its orders.
Even when identifying the relevant remedies, several tribunals have awarded resti-
tution with compensation as an alternative—an approach that might be consistent
with the remedial schema in the ILC Articles. One of the earliest examples is the
case of Goetz v Burundi,59 in which the ICSID Tribunal suggested in an interim
decision (conscious of ongoing settlement negotiations) that the Respondent either
provide restitution of the relevant tax-free zone certificate that the State had with-
drawn or provide compensation. In doing so, the Tribunal made no reference to the
antecedents of the ILC Articles. However, the parties succeeded in reaching a settle-
ment agreement, incorporated into an award, involving the reimbursement of taxes
by Burundi and the creation of a new tax-free zone regime.60 More recently, in Arif
v Moldova, it was the Respondent State that requested the Tribunal to award it the
‘opportunity’ to provide restitution as an alternative to the damages sought by the
Claimant for the suspension of his lease for an airport duty-free shop.61 The Tri-
bunal noted that restitution is in general the ‘preferable’ remedy as it might preserve
55
ARSIWA (n 6) art 30, commentary paras 7–8; art 35.
56
Chevron v Ecuador (n 5) paras 9.20–9.97.
57
ibid para 9.15.
58
ibid para 9.17.
59
Antoine Goetz v Burundi (n 5).
60
Professor Schreuer has noted that since (i) the Tribunal’s interim decision was not a remedy for an illegal act,
but rather a way to avoid responsibility in the first place and (ii) the creation of the new free zone regime was based on
the parties’ agreement, it is ‘doubtful whether [Goetz] can be cited as an example for a tribunal awarding non-pecuniary
relief’. Christoph Schreuer, ‘Non-Pecuniary Remedies in ICSID Arbitration’ (2004) 20(4) Arbitration International 325,
330. However, the Enron Tribunal did not consider that the Goetz award was deprived of its legal force because it was
based on a settlement agreement. Enron v Argentina (n 5) para 80.
61
Arif v Moldova (n 5).
the investment and the relationship.62 However, since the Tribunal found itself not
to be in a position to ‘supervise’ such a remedy, it ordered restitution and compensa-
tion as alternative remedies, subject to the election of the Claimant.63 The Tribunal
only made a fleeting reference to the ILC Articles, although this was the sole legal
authority that it invoked in support of its order.64
A variation on this approach was adopted by the ICSID Tribunals in von Pezold v
Zimbabwe, referenced above, in which the primary remedy ordered was the restitution
of the Estates that the Respondent State had indirectly and unlawfully expropriated.65
In reaching the decision to order restitution as the primary remedy, the Tribunals
relied extensively on the ILC Articles.66 However, anticipating that the Respondent
State might refuse to comply with its order of restitution, the Tribunals alternatively
ordered that compensation would become due within 120 days of the Awards if resti-
tution was not made.67 This approach had the practical, if not legal, effect of leaving
the choice of remedy to the decision of the Respondent State. It was akin to that which
was adopted in Texaco v Libya (cited by the von Pezold Tribunals), although that Tri-
bunal’s award was issued long before the ILC Articles were in their final form.68 In
the Texaco case, the sole arbitrator granted Libya five months in which to implement
its award (restitution/specific performance of the deeds of concession that had been
nationalized), failing which the matter of further proceedings was reserved, which
would entail ‘the prospect of a judgment for damages which would eventually become
the monetary equivalent of specific performance, if non-performance were to become
final’.69
An alternative approach is for the tribunal to order the respondent State simply to
provide a non-pecuniary remedy but without ordering compensation as an alterna-
tive. This too may be consistent with the remedial schema from the ILC Articles. In
Chevron v Ecuador, the Claimants requested from the UNCITRAL Tribunal, among
other relief, that the Respondent State be ordered to set aside or nullify and prevent
the recognition and enforcement of a domestic court judgment rendered in breach of
due process.70 The Tribunal made reference to the ILC Articles as a ‘starting point’
but did not provide any detailed discussion of the Articles in its analysis. However,
having found that the court judgment did breach the US–Ecuador BIT and custom-
ary international law,71 the Tribunal ordered in the operative part of its Track II
Award a series of non-pecuniary remedies ‘as unconditional obligations of result’.72
These included orders to ‘remove the status of enforceability’ from the court judg-
ment, to prevent the enforcement of that judgment, and to otherwise take corrective
measures to wipe out the consequences of the judgment.73 Additionally, the Tribunal
62
ibid para 571.
63
ibid. The Tribunal ordered that in either event the Respondent was to additionally compensate the Claimant for
wasted opening and operating costs for which restitution could not be made. ibid para 583. Moldova apparently elected
to pay the compensation rather than offer restitution to the Claimant. Le Bridge Corporation Ltd SRL v Moldovia, ECHR
App No 48027/10, Decision (27 March 2018) para 18.
64
Arif v Moldova (n 5), para 570, n 264.
65
von Pezold v Zimbabwe (n 5) para 1020.1
66
67
ibid paras 755, 1020.2.
68
Texaco Overseas Petroleum Company & California Asiatic Oil Company v Libyan Arab Republic, 17 ILM 1 (1978).
69
ibid para 111.
70
Chevron v Ecuador (n 5) 9.88, 9.90.
71
ibid para 10.5.
72
ibid para 10.13.
73
ibid.
reserved for a further decision in Track III of the dispute any decision about ‘repa-
ration in the form of compensation for any injuries’ sustained by the Claimants.74
While the Tribunal did not provide that compensation would be an alternative to
the non-pecuniary remedies ordered, it thus did retain jurisdiction to determine any
compensation that might be due.
A similar approach was adopted by the UNCITRAL Tribunal in Cairn Energy
v India, albeit without retaining jurisdiction to issue any further remedial orders.
There the Claimants sought the withdrawal of demands for tax payments regard-
ing a 2006 corporate reorganization of various assets in India or, in the alternative,
payment equal to the amounts demanded.75 After accepting the Claimants’ position
that the 2012 amendment did not merely clarify the previously applicable Indian Tax
Code but instead retroactively and illegally altered it, the Tribunal ordered, with-
out qualification, the withdrawal of the tax payment demands and also prohibited
the Respondent from any attempt to recover the amounts supposedly due.76 The
Tribunal relied upon the ILC Articles as well as the PCIJ’s Chorzów Factory judg-
ment as the legal authority underlying its remedial approach, including the priority,
in theory, it assigned to restitution.77 It explicitly declined to provide the payment
of compensation as an alternative to compliance with the ordered non-pecuniary
remedies.78
In some instances, non-pecuniary remedies might effectively be the only possible
means of relief, since it may be difficult or even impossible to quantify the monetary
loss caused by the abrogation of the rights in question. The ILC Articles might sup-
port non-pecuniary remedies in such circumstances. An example is ATA Construction
v Jordan, where the ICSID Tribunal ordered that the Claimant’s right to arbitrate
a dispute, which had been retroactively extinguished by decisions of the Jordanian
courts, be reinstated.79 Although the Tribunal did not invoke the ILC Articles, it did
rely on equivalent principles as set forth in the PCIJ’s Chorzów Factory judgment.80
It held that the retroactive extinguishment of the right constituted a clear violation of
the Turkey–Jordan BIT.81 It ordered, first, that ongoing court proceedings be ‘imme-
diately and unconditionally terminated, with no possibility to conduct further judicial
proceedings in Jordan or elsewhere on the substance of the dispute’ and, second, that
ATA was entitled, if it wished, to bring its claim in arbitration once more in accor-
dance with the contract’s provisions. In the Tribunal’s view, restoration of the right
to arbitration was ‘the single remedy which can implement the Chorzów standard’.82
The Tribunal had no doubt that an award of non-pecuniary remedies was equally
binding to one expressed in monetary terms.83
74
ibid para 10.14.
75
Cairn Energy v India (n 5) para 1870.
76
ibid para 1877.
77
ibid para 1872.
78
79
ATA Construction v Jordan (n 5).
80
ibid paras 129–31
81
ibid para 133. Treaty between the Hashemite Kingdom of Jordan and the Republic of Turkey Concerning
Reciprocal Encouragement and Protection of Investments (signed 2 August 1993, entered into force 23 January 2006).
82
ATA Construction v Jordan (n 5) para 131.
83
ibid para 130.
D. Refusing Non-Pecuniary Remedies on the Basis of Impossibility or

Disproportionality
Article 35 of the ILC Articles and various awards make clear that a State will not be
obliged to provide restitution where that is materially impossible or disproportionate
to the benefit. This appears to be a common reason that investor-State tribunals
refuse to order non-pecuniary remedies, in part because restitution is the non-
pecuniary remedy most commonly sought in investor-State disputes. This section
will examine the awards that have examined non-pecuniary remedies on the basis
that they are either not possible or disproportionate.
In Al-Bahloul v Tajikistan,84 for example, the Tribunal held that it could not order
the Respondent to issue exclusive licences for hydrocarbon exploration because its
implementation was ‘materially impossible’.85 The relevant considerations appeared
to be that: nine years had passed since the unlawful measures were adopted; the
licences had been granted to other parties (and investments made under them) and
the Claimant had no activities in Tajikistan and no working relationship with the
country—nor had it been engaged in oil and gas exploration or development else-
where.86 Similarly, in Waguih v Egypt, the Claimants requested the restitution of
their investment in expropriated oceanfront land, together with damages.87 The Tri-
bunal, however, found that restitution of the Claimants’ investment was not possible
because the property had been conveyed to a third party six years earlier.88
Interestingly, in Petrobart v Kyrgyz Republic,89 specific performance was requested
by the Respondent State. The Claimant had claimed compensation on three grounds,
including for loss of profit for gas condensate already supplied to the Respondent
under a contract between them, for which it had not been paid. The Respondent
argued that the proper remedy for breach of contractual obligations was specific per-
formance, so, in principle, an order could be made for the delivery of the remaining
gas condensate and for payment for it. The Tribunal held that in the circumstances
this would not be possible since the contract had been frustrated, and were Petrobart
forced to deliver the remaining quantities, it would have to renegotiate the price of
the gas from its suppliers at market level. The delivery would also be impossible for
practical reasons as Petrobart was no longer engaged in Kyrgyzstan.90 One can easily
envisage particular situations in which, where an investment relationship has broken
down, the effluxion of time from the institution of the arbitration to the rendering of
an award may often allow a sufficiently significant change to occur so that restitution
may be considered impossible.
Other tribunals have refused to order restitution not because it was impossible but
because it was disproportionate to the benefit, within the meaning of article 35 of the
ILC Articles. This has been the case for a number of disputes arising from changes
to taxes and subsidies in the Spanish renewable energy sector.91 For example, the
Claimant in the case of RWE v Spain sought restitution of the legal regime that had
84
Al-Bahloul v Tajikistan (n 5).
85
ibid para 52.
86
ibid para 54.
87
Waguih v Egypt (n 5) para 517.
88
ibid para 534.
89
Petrobart v Kyrgyz Republic (n 5).
90
ibid 36.
91
See also Infrastructure Services v Spain (n 5) para 636. We discuss below additional Spanish renewables cases where
the tribunals’ reasoning on disproportionality mixed with sovereignty concerns.
been applicable to the renewable energy sector prior to the implementation of the
new regulatory framework.92 The ICSID Tribunal rejected this request ‘[a]s this
[was] plainly not an appropriate case for restitution’.93 In support, it relied exclu-
sively on the disproportionality of the requested restitution to the benefit it would
afford to the Claimant. It reasoned as follows: ‘This case involves State regulation
that is generally applicable across a very important sector in Spain i.e. the RE sec-
tor whereas, by contrast, the claimants can very readily be afforded full reparation
through compensation.’94
By contrast, the case of von Pezold v Zimbabwe illustrates how and when restitution
may be ordered despite challenges based on material impossibility and disproportion-
ality. The Claimants asked the ICSID Tribunals to order the restitution of several
farms in Zimbabwe following their expropriation under the country’s Land Reform
Programme. The Tribunals confirmed that the applicable defence to restitution
would be the grounds set out in article 35 of the ILC Articles, namely material
impossibility and disproportionality.95 In determining that restitution was not materi-
ally impossible, the Tribunals emphasized the relevance of the Claimants’ substantial
occupation of the properties and highlighted that, were title restored, it would ‘serve
to legitimise the de facto position in which the Claimants remain[ed]’.96 The Tribunals
also noted the ‘fragile rights of the third parties currently resident on the land’, con-
cluding that ‘[l]egal title simply needs to be issued’.97 The Tribunals then quickly
dismissed the defence of disproportionality, observing that the Claimants’ requested
remedy ‘does not involve any widescale juridical restitution or attack on Zimbabwe’s
sovereignty’.98
For its part, the Cairn Energy Tribunal, with reference to the ILC Articles and
commentary, perfunctorily dismissed concerns that the requested order to withdraw
a demand for tax payments, related to a 2006 corporate reorganization, would be
materially impossible or disproportionately burdensome.99 Although the Tribunal
observed that there was no ‘obvious impediment’ to compliance with the requested
order, it did not provide further explanation as to why, before proceeding to order
the requested non-pecuniary remedy.
III. OTHER THEMES PREVALENT IN DECISIONS

WHEN ADDRESSING NON-PECUNIARY REMEDIES
The surveyed decisions often lacked an articulated basis for conclusions on non-
pecuniary remedies. Moreover, the methodologies, when specified in the decisions,
did not uniformly track the set of principles espoused in the ILC Articles. In addition
to considerations based on or reflecting the ILC Articles, there were three key themes
identified from the decisions surveyed. These themes are generally invoked in order
to preclude orders of non-pecuniary remedies, either in favour of compensation or
in favour of no remedy at all. The result of these themes is that there is some tension
92
RWE v Spain (n 5) para 681.
93
ibid para 685.
94
ibid.
95
von Pezold v Zimbabwe (n 5) para 723.
96
ibid para 728.
97
ibid para 739.
98
ibid para 735.
99
in the case law with the secondary status that the ILC Articles nominally assign to
compensation as a remedy (again, even while recognizing that this status may often
not apply in practice).
This section provides a general review of the themes not clearly grounded in the
ILC Articles that investor-State decisions have invoked when considering requests for
non-pecuniary remedies. We first address the deference that investor-State tribunals
have given to State sovereignty. We then consider the relevance of enforceability of
non-pecuniary remedies to the decision as to whether to grant them. We finally focus
on the element of consent to non-pecuniary remedies, and when this has entered into
tribunal analyses.
A. Deference to the Sovereignty of a State

A concern that is often discernible is deference to the sovereignty of a State. There is a
long-held perception among tribunals that to order a State to take a positive measure,
such as ordering restitution or an injunction, involves a greater infringement of the
State’s sovereignty than requiring it to pay pecuniary damages. This concern is not
specifically identified in the ILC Articles but has nevertheless been a recurring theme
in a number of investor-State decisions on non-pecuniary measures.
In LG&E v Argentina, the Claimants asserted various violations of the US–
Argentina BIT, on account of the enactment of emergency measures in response to
Argentina’s economic crisis, which adversely affected their investments. In its Deci-
sion on Liability, the Tribunal found in favour of the Claimants, except for during a
certain period when Argentina’s conduct was justified based on a state of necessity. In
relation to the possibility of restitution of the prior tariff regime, the Tribunal noted
that upon the cessation of the state of necessity, Argentina’s obligations were once
again effective and it should therefore have re-established the tariff scheme offered
to LG&E or, at least, compensated the Claimants for the loss incurred.100 In its final
award, the Tribunal again addressed the Claimants’ claim for restitution and con-
cluded: ‘As Argentina has chosen not to restore its tariff obligations, the Tribunal
sees no point in repeating its order and would consequently order and quantify the
payment of compensation.’101 Its reasoning was as follows:
The judicial restitution required in this case would imply modification of the current legal
situation by annulling or enacting legislative and administrative measures that make over the
effect of the legislation in breach. The Tribunal cannot compel Argentina to do so without
a sentiment of undue interference with its sovereignty. Consequently, the Tribunal arrives
at the same conclusion: the need to order and quantify compensation.102
A similar theme arose in several of the decisions on cases concerning Spanish

renewables when claimants requested restitution of the prior tax and subsidy scheme
for renewable energy investments. For example, the ICSID Tribunal in Eiser v Spain
rejected the request for restitution of the prior legal and regulatory regime, explaining
that it ‘does not question Respondent’s sovereign right to take appropriate regulatory
measures to meet public needs, potentially including revision of the RD 661/2007
100
LG&E v Argentina, Decision on Liability (n 5) para 265.
101
LG&E v Argentina, Award (n 5) para 86.
102
ibid para 87.
regime’.103 The ICSID Tribunal in Watkins v Spain even more directly observed that
‘restitution is an inappropriate remedy because the Respondent has a sovereign right
to take appropriate legislative and regulatory measures to meet public interests’.104
The invocation of sovereignty in this stark form to exclude restitution is questionable.
The Tribunal’s prior decision on the merits that the relevant legislative and regulatory
measures breached the Energy Charter Treaty (ECT) would seemingly foreclose the
possibility that those measures lie within the sovereign right of the Respondent State.
Other tribunals in cases concerning Spanish renewables have deployed concerns
for sovereignty—not specifically found in the ILC Articles—when considering the
impossibility or disproportionality of restitution per the Articles. The ICSID Tribunal
in Masdar v Spain, for example, framed its analysis in terms of the disproportionality
of restitution compared to its benefit, as set forth in article 35 of the ILC Articles.105
It emphasized that ‘juridical restitution should not be granted … because doing so
would unduly burden Respondent’s legislative and regulatory autonomy, and would
potentially benefit numerous parties not protected by the ECT (or otherwise)’.106 In
this regard it suggested that the commentary to the ILC Articles endorses balanc-
ing public and private interests based on equity and reasonableness.107 It is worth
clarifying, however, that, while the Commentary to the ILC Articles does endorse
assessing proportionality based on considerations of equity and reasonableness, it
does not consider that this is a matter of balancing public and private interests but
instead the competing interests of the responsible State and the injured State.108
Another case reflecting deference to sovereignty, and similarly combining that with
a proportionality analysis, is Occidental v Ecuador.109 In that case, the Claimants
sought the reinstatement of their acquired rights in production-sharing contracts for
hydrocarbons, which had been terminated by ministerial decree. By way of provi-
sional measures, the Claimants requested that Ecuador be prevented from entering
into concession contracts with third parties in relation to the disputed blocks.110
In the Decision on Provisional Measures, the ICSID Tribunal considered that the
Claimants had not established a ‘strongly arguable right’ to specific performance and
noted that it was not aware of any ICSID tribunal that had granted such a remedy
where the claim was based on the termination of a natural resources concession by a
State.111
The Tribunal accepted the proposition that ‘for purposes of making an injured
Claimant whole, specific performance should be granted to it, unless impossible or
disproportionate when compared to compensation’.112 It examined in turn whether
specific performance was possible and proportionate, concluding that it would be
impossible for specific performance to occur because it was ‘well established’ that
‘where a State has, in the exercise of its sovereign powers, put an end to a contract or
103
Eiser v Spain (n 5) para 425.
104
Watkins v Spain (n 5) para 674.
105
Masdar v Spain (n 5) para 562.
106
ibid para 559.
107
ibid para 558.
108
ARSIWA (n 6) art 35, commentary para 11.
109
Occidental v Ecuador (n 5).
110
ibid para 68.
111
ibid para 78.
112
ibid para 75.
a license, or any other foreign investor’s entitlement, specific performance must be

deemed legally impossible’.113
The Occidental Tribunal acknowledged that in Texaco v Libya, one of a series of
awards arising out of the expropriations of American oil concessions in Libya, the
sole Arbitrator did grant specific performance in the context of a nationalization.114
However, it considered Texaco v Libya to be ‘unique and fact specific’ because that
Arbitrator had insisted specific performance could not be considered impossible as
the Respondent had neither appeared, nor provided relevant information.115 The
Arbitrator acknowledged in principle, however, that restitution should not be ordered
where there is an ‘absolute impossibility of envisaging specific performance’ or ‘an
irreversible situation has been created’.116
The Occidental Tribunal contrasted Texaco v Libya with two further cases against
Libya—LIAMCO v Libya117 and BP v Libya118 —both of which held that a remedy of
specific performance was impossible in instances of nationalization. The LIAMCO
Tribunal noted that ordering a reinstatement of the Claimant’s concessions would
be an ‘intolerable interference’ in the State’s sovereignty,119 while the BP Tribunal
similarly concluded that:
when by the exercise of sovereign power a State has committed a fundamental breach of a
concession agreement by repudiating it through a nationalization of the enterprise and its
assets in a manner which implies finality, the concessionaire is not entitled to call for specific
performance by the Government of the agreement and reinstatement of his contractual
rights.120
Despite these considerations, the Occidental Tribunal also separately analyzed

whether specific performance was considered to be possible. Citing article 35 of
the ILC Articles, it stated that specific performance would be denied in a situation
where it ‘imposes too heavy a burden on the party against whom it is directed’.121
It concluded that, on the facts, ‘[t]o impose on a sovereign State reinstatement of a
foreign investor in its concession, after a nationalization or termination of a conces-
sion license or contract by the State, would constitute a reparation disproportional
to its interference with the sovereignty of the State when compared to monetary
compensation’.122
There is a preference in some of the cases to defer to a State’s sovereignty. How-
ever, deference to State sovereignty is not conceptually unchallengeable and reflexive
‘anticipatory deference’ might be subject to question. If the basis for the making of
a pecuniary award is the State’s submission to the tribunal’s jurisdiction to resolve
113
Occidental v Ecuador (n 5) para 79.
114
Texaco v Libya (n 68) para 112. The arbitrator in this case granted Libya five months in which to implement the
Award, failing which the matter of further proceedings was reserved (so, presumably, compensation could then have
been awarded). It was reported approximately eight months after the Award was rendered that the parties had reached a
settlement under which Libya agreed to provide the Claimants with $152 million of Libyan crude oil over the subsequent
15 months.
115
Libya’s only ‘appearance’ in the proceedings was the filing of a memorandum opposing the request for arbitration
on the grounds that the nationalizations were acts of sovereignty and not subject to arbitration.
116
Texaco v Libya (n 68) para 79.
117
Libya American Oil Company (LIAMCO) v Libyan Arab Republic 20 ILM 1 (1981).
118
BP Exploration Company (Libya) v Libyan Arab Republic 52 ILR 297 (1974).
119
LIAMCO v Libya (n 117) 63.
120
BP v Libya (n 118) 354.
121
ibid para 82.
122
ibid para 84.
the dispute in accordance with the ICSID Convention, treaty provisions and interna-
tional law, and non-pecuniary remedies is appropriate under these laws, one might
argue that a non-pecuniary remedy is not any more problematic from a sovereignty
perspective. An award of damages equally forces a State to do something it does not
want to do and deprives it of funds that would be used for other purposes.
In some instances, State sovereignty may be a relevant consideration for not
applying non-pecuniary remedies. However, the particular circumstances are often
relevant to whether State sovereignty supports a decision to issue or not to issue
non-pecuniary remedies. For example, the reversal of a legislative measure pertain-
ing particularly closely to a State’s governmental policy might well curtail a State’s
sovereignty. To prescriptively outline the situations where non-pecuniary remedies
are and are not appropriate would not be constructive since, like many recurring
issues in investor-State arbitration, the matter needs to be addressed on a case-by-
case basis. Regardless of the doctrinal approach, if sovereignty is a real concern to a
tribunal, it might consider awarding both non-pecuniary remedies or compensation
at the State’s option (as in Goetz) to provide flexibility around the issue of sovereignty.
B. The Unenforceable Nature of a Non-Pecuniary Award

There appears to be a belief among some that non-pecuniary remedies ought not
be issued by tribunals because they are not as easily enforceable as pecuniary reme-
dies.123 If such a contention is true, it is only rarely expressed in the surveyed awards.
That said, the tribunals that have awarded restitution but also compensation if resti-
tution is not forthcoming, their doing so suggests they are cognizant of the risk that
the order of the non-pecuniary remedies might not be enforceable. Exceptionally,
such considerations are explicit in Arif v Moldova, where the Tribunal’s concern
about the possibility of restitution was compounded by its inability to ‘supervise any
restitutionary remedy’.124 The Tribunal in Masdar v Spain also invoked such con-
cerns, observing that ‘implementation of an award of restitution would face obvious
practical and enforcement obstacles, making its benefits to Claimant uncertain’.125
Interestingly, the Micula Tribunal appeared more concerned with its inability to
change its order after it had rendered its final award than it did with the potentially
difficulties in enforcing the award:
[A]lthough the Tribunal has the power to grant additional definitive injunctive relief in the
Award, any such relief should be granted with the utmost caution. Once the Award is issued
and subject to potential requests for rectification, supplementary decision, interpretation
or revision, the Tribunal will become functus officio. It will not be able to reconsider the
injunctive relief granted, which would have res judicata effect.126
Indeed, pecuniary remedies, as opposed to non-pecuniary remedies, may raise

questions of oversight and enforceability once an investor-State tribunal becomes
functus officio. The UNCITRAL Tribunal in Cairn Energy v India noted potential
‘difficulties in respect of legal certainty and possible double recovery’ if it were to
123
Schreuer (n 60) 332 notes that tribunals imposing non-pecuniary obligations should keep the impossibility of
enforcing them in mind, and warns they should ‘provide for a pecuniary alternative in case of non-performance’.
124
Arif v Moldova (n 5) para 571.
125
Masdar v Spain (n 5) para 563.
126
Micula v Romania, Award (n 5) para 1320.
order pecuniary payment to the Claimant as an alternative to the withdrawal of

tax demands.127 In this regard, it underscored that it would be unable to resolve
any future disagreements regarding the amount of the payment and that pecuniary
payment is premature because the tax demands had not yet become due.128 As a
result, the Tribunal elected not to order pecuniary payment as an alternative to its
non-pecuniary order for the withdrawal of the tax demands.129
Instead of being concerned with the enforceability of an award, several tribunals
specified that this should not be a consideration. For example, in its Decision on
Jurisdiction and Admissibility, the Micula Tribunal stated: ‘Similarly, and contrary
to Respondent’s argument, the fact that such a remedy might not be enforceable
pursuant to Article 54 of the ICSID Convention should not preclude a tribunal
from ordering it. Remedies and enforcement are two distinct concepts.’130 A simi-
lar sentiment appeared in Al Bahloul, where the Tribunal noted: ‘Possible problems
of enforcement do not in and of itself make specific performance an impermissible
remedy.’131 Such an analysis is one possible view of the matter, even if enforceability
is sometimes an unexpressed inherent consideration of tribunals.
C. The Need for the Parties to Consent to a Non-Pecuniary Remedy

A further theme, although not always expressed as such, was the desire of tribunals
to obtain the consent of both parties to an award of a non-pecuniary remedy. Arif v
Moldova illustrates this point. Despite the statement that restitution was the ‘prefer-
able’ remedy, the Tribunal’s approach of restitution and compensation as alternatives
gave the State the ability to formulate the form of the restitution and gave the
Claimant the power to reject the proposal.132 Similarly, although it did not explicitly
state this as a reason for its decision to award restitution, the ATA Construction Tri-
bunal noted that the Respondent had already indicated its willingness to submit the
ongoing dispute to a new commercial arbitration.133
Another illustration, perhaps, of the need for both parties’ consent is in Funnekotter
v Zimbabwe.134 In this case, the Respondent argued it was in a position to restore to
the Claimants their (expropriated) farms but noted that, if they did not accept this,
the property would belong to the State.135 In contrast, the Claimants argued that
restitution would be ‘neither practicable nor possible’, as two other farms operated by
foreign investors had been invaded and their owners forced to leave.136 They argued
that, instead, compensation ‘corresponding to what a restitution in kind would yield’
was due and undertook to return to Zimbabwe all shares, deeds and other indices
of ownership of the farms. The Respondent’s offer of restitution was later with-
drawn. The Tribunal noted that ‘both Parties finally exclude restitution of the farms
expropriated’ and then determined the damages payable by Zimbabwe.137
127
128
129
ibid para 1876.
130
131
Al-Bahloul v Tajikistan (n 5) para 50.
132
Arif v Moldova (n 5).
133
ATA Construction v Jordan (n 5) para 131.
134
Funnekotter v Zimbabwe (n 5) para 69.
135
ibid para 69.
136
ibid paras 47, 79.
137
ibid paras 112, 148.
IV. LESSONS FROM HUMAN RIGHTS PRACTICE

The various courts and other bodies established to adjudicate human rights dis-
putes between States and individuals have a rich practice of ordering non-pecuniary
remedies in response to findings of human rights violations. This practice has made
ample use of the categories and concepts of non-pecuniary remedies reflected in
the ILC Articles—such as cessation, restitution, satisfaction and guarantees of non-
repetition—even when it does not make explicit reference to the Articles. While
this article’s predecessor on non-pecuniary remedies in investor-State arbitration138
highlighted the WTO experience, human rights practice provides a useful point
of comparison for this article’s focus on the ILC Articles’ application to disputes
between private parties and States.
This section provides a comparative view of human rights practice in view of the
ILC Articles and general international law as well as the ways in which it might inform
the development of non-pecuniary remedies in investor-State cases. We first provide
a general review of current human rights approaches to non-pecuniary remedies and
how they emerged from the background of the general international law of State
responsibility. We then identify potential insights that human rights practice might
provide for investor-State disputes, whether at the level of investment treaties or at
the level of concrete disputes.
A. Overview of Non-Pecuniary Remedies before Human Rights Adjudicators

The contemporary system for the protection of human rights consists of overlapping
treaty regimes and adjudicatory bodies with different centres of gravity. The principal
treaties in the United Nations–centred universal system—the International Covenant
for Civil and Political Rights and the International Covenant for Economic, Social,
and Cultural Rights—have associated monitoring bodies empowered to resolve indi-
vidual disputes—the Human Rights Committee and the Committee on Economic,
Social and Cultural Rights.139 Alongside this system, there are three major regional
systems140 based on regional treaties—the European Convention on Human Rights,
the American Convention on Human Rights and the African Charter on Human
and Peoples’ Rights—with associated courts that decide upon individual disputes—
the European Court of Human Rights, the Inter-American Court of Human Rights
and the African Court on Human and Peoples’ Rights.141
These adjudicatory bodies have developed an extensive and detailed jurisprudence
regarding non-pecuniary remedies. This practice has drawn from and adapted the
concepts and categories from the general law of State responsibility—now codified
in the ILC Articles—to define remedies for the individual victims of human rights
138
Bradfield and Thomas (n 3).
139
See International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 arts 28–45 (Human Rights Committee); International Covenant on Economic, Social and Cultural
Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (Committee on Economic, Social
and Cultural Rights).
140
Other regional systems, including the Arab Human Rights Committee and ASEAN Intergovernmental Commission
on Human Rights, remain in the nascent stages.
141
The Inter-American Human Rights System also includes the Inter-American Commission on Human Rights and
the African Human Rights System includes the African Commission on Human and Peoples’ Rights.
violations. A key step in this development was the elaboration of the UN Basic Prin-
ciples on the Right to a Remedy,142 undertaken while the remedial practice of human
rights adjudicators was also in the process of maturing.143 The Basic Principles, which
explicitly drew from then in-progress ILC Articles,144 defined remedies for human
rights violations based on the major concepts and categories from the general inter-
national law of State responsibility—such as restitution, compensation, satisfaction
and guarantees of non-repetition. These general concepts were adapted, and indeed,
expanded to ensure that individual victims of human rights violations would receive
full reparation for the injury from the wrongful action, such as by adding rehabili-
tation as a category of non-pecuniary remedy aimed at the remaining physical and
psychological effects of the international law violation.
Although the UN Basic Principles only address remedies for gross human rights
violations, human rights adjudicators have applied this general framework across the
entire range of human rights violations. The Inter-American Court has been at the
vanguard, providing in-depth analysis of the logic and rationale for the framework. It
has included in its practice a broad range of non-pecuniary remedies, alongside and
in addition to the compensation that it had ordered from its very first judgments.145
Similar broad palettes of possible non-pecuniary remedies soon entered the remedial
practice of the Human Rights Committee146 and the Economic, Social and Cultural
Rights Committee.147 For its part, the African Court incorporated non-pecuniary
remedies from its very first orders and judgments on reparations, which were ren-
dered only in the last few years.148 While the European Court has been slower to
expand the range of remedies regularly granted, its recent practice has also become
increasingly receptive to non-pecuniary remedies.149
In line with the ILC Articles, human rights adjudicators theoretically grant restitu-
tion as the primary remedy for a human rights violation,150 and their practice reflects
this nominal primacy (although compensation is also frequently ordered alongside
restitution and other remedies).151 If the human rights violation is ongoing, the adju-
dicator may order cessation of the wrongful conduct in addition to restitution.152
142
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Inter-
national Human Rights Law and Serious Violations of International Humanitarian Law, General Assembly resolution
60/147, UN Doc A/RES/60/147 (16 December 2005).
143
The initial substantive report in the process leading to the Basic Principles, which gave those principles their basic
form and approach, was submitted in 1993. Special Rapporteur Theo van Boven, Study Concerning the Right to Restitu-
tion, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, UN Doc
E/CN.4/Sub.2/1993/8 (2 July 1993).
144
See ibid paras 40–48 (referencing general international law and the ILC Articles then under development).
145
See eg, Cantoral Benevides v Peru, IACHR Series C No 88, Judgment (3 December 2001) para 99.
146
See Human Rights Committee, General Comment No 31 (26 May 2004) paras 16–19.
147
It has employed non-pecuniary remedies from its very first decision on the merits of an individual dispute. See IDG
v Spain, CESCR Communication No 002/2014, Views (17 June 2015) paras 16–18.
148
African Court on Human and People’s Rights, Comparative Study on the Law and Practice of Reparations for Human
Rights Violations (2019) 4.
149
See Dinah Shelton, Remedies in International Human Rights Law (3rd edn, OUP 2015), 387–88 (citing Aslakhanova
v Russia, ECHR Application Nos 2944/06 and 8300/07, 50184/07, 332/08, 42509/10, Judgment (Oxford University
Press, 18 December 2012) paras 221–38).
150
ibid 298; African Court on Human and People’s Rights (n 148) 46.
151
See eg Cantos v Argentina, IACHR Series C No 97, Judgment (28 November 2002) para 70; Ichvar Bronstein v Peru,
IACHR Series C No 74, Judgment (6 February 2001) para 181; Kuvvatali Mudorov v Tajikistan, HRC Communication
No 2826/2016, Views, UN Doc CCPR/C/124/D/2826/2016 (29 November 2018) para 9; Robert Brok v Czech Republic,
HRC Communication No 774/1997, UN Doc CCPR/C/73/D/774/1997 (31 October 2001) para 9; Konate v Burkina
Faso, ACHPR Application No 004/2013, Judgment on Reparations (3 June 2016) paras 23–24.
152
See eg Chaparro Álvarez v Ecuador, IACHR Series C No 170, Judgment (21 November 2007) paras 268–69;
Assenova Naidenova and others v Bulgaria, HRC Communication No 774/1997, UN Doc CCPR/C/106/D/2073/2011
(27 November 2012) para 16; Gómez-Limón Pardo v Spain, CESCR Communication No 52/2018, Views (5 March
When it produces lingering injury to the physical, mental or social well-being of the
victim, measures of rehabilitation may also be ordered—perhaps akin to partial resti-
tution of that well-being.153 Restitution (and cessation where applicable) is conceived
of broadly in the human rights context, often taking the form of undoing the legal
effects of a given State action or altering the applicable legal or regulatory framework,
but can also involve the material restoration of a prior state of affairs.154 In the view of
a key commentator on remedial practice in human rights, these orders serve to elim-
inate the ability of the State to make monetary payments in order to commit human
rights violations and also serve to limit the need for repeated litigation by victims of
the same conduct.155
Even when a human rights adjudicator orders restitution (or compensation), it is
common to order, in addition, measures of satisfaction and/or guarantees of non-
repetition.156 Measures of satisfaction are aimed at acknowledging the violation and
repairing symbolic, dignitary and reputational dimensions of the injury. The adjudi-
cator often considers its decision or judgment itself to be a form of satisfaction, but
one that is not sufficient by itself to redress the violation.157 In addition, it is com-
mon to order the publication of the decision, admission of responsibility, or public
apologies by State officials, among the range of measures of satisfaction.158 By con-
trast, guarantees of non-repetition aim to prevent future violations of a similar nature
where the circumstances of the dispute indicate a risk of repetition. These guarantees
may involve investigation and sanction of those individuals directly responsible for the
violation159 as well as a wide range of legal, regulatory, institutional or administrative
reforms.160
Although much of the caseload is dedicated to gross human rights violations, it
remains common to apply this general remedial framework to human rights viola-
tions with a significant economic dimension. For example, the Ichvar Bronstein v Peru
case before the Inter-American Court concerned the deprivation of the Petitioner of
his nationality and the elimination of his control over and ownership of a media com-
pany. Finding multiple human rights violations, the Court ordered the State to create
conditions allowing the Petitioner to recover ‘the use and enjoyment of his rights as
2020) para 13; IDG v Spain (n 147) para 16; Sebastian Germain Ajavon v Benin, ACHPR Application No 013/2017,
Judgment (Reparations) (28 November 2019) paras 110–11, 116–17, 120–21 (albeit not explicitly categorizing the orders
as cessation or restitution).
153
Shelton (n 149) 394 (Rehabilitation ‘can be considered a form of restitution, although it is also crucial to prevent
further deterioration’.).
154
African Court on Human and People’s Rights (n 148) 47–49.
155
Shelton (n 149) 378.
156
These very types of remedies were requested by the Claimant but rejected by the Tribunal. However, the Quiborax
Tribunal in doing so apparently overlooked human rights practice when it observed that ‘[i]nternational case law strongly
suggests that some types of satisfaction are a remedy exclusively designed for States’. Quiborax v Bolivia, Award (n 5)
para 557.
157
See eg Abril Alosilla and others v Peru, IACHR Series C No 223, Judgment (4 March 2011) paras 132, 223; Five
Pensioners v Peru, IACHR (12 September 2005) para 180; Ichvar Bronstein v Peru (n 151) para 183; Cantos v Argentina
(n 151) para 71; Gómez-Limón Pardo v Spain (n 152) para 19.
158
African Court on Human and People’s Rights (n 148) 58–63. See eg Abril Alosilla v Peru (n 157) paras 92, 223;
Salvador Chiriboga v Ecuador, IACHR Series C No 222, Judgment (3 March 2011) para 127; Kuvvatali Mudorov v
Tajikistan (n 151) para 10; Assenova Naidenova v Bulgaria (n 152) para 16; Gómez-Limón Pardo v Spain (n 152) para
13; IDG v Spain (n 147) para 18; Ikili Rashidi v Tanzania, ACHPR Application No 009/2015, Judgment (Merits and
Reparations) (28 March 2019) para 153.
159
See eg Five Pensioners v Peru, IACHR Series C No 98, Judgment (28 February 2003) para 179; Ichvar Bronstein
v Peru (n 151) para 187; Zongo v Burkina Faso, ACHPR Application No 013/2011, Judgment on Reparations (5 June
2015) paras 109–10.
160
African Court on Human and People’s Rights (n 148) 64–67. See eg Ichvar Bronstein v Peru (n 151) paras 182,
185; Kuvvatali Mudorov v Tajikistan (n 151) para 10; Assenova Naidenova v Bulgaria (n 152) para 16; Gómez-Limón Pardo
v Spain (n 152) para 14; IDG v Spain (n 147) para 17; Sebastian Germain Ajavon v Benin (n 152) para 127.
majority shareholder’.161 It observed that the judgment itself amounted to a measure

of satisfaction (before ordering moral damages), but further ordered as (apparent)
guarantees of non-repetition the investigation and punishment of those responsible
and would also have ordered legislative and administrative changes had those not
already been implemented.162
Similarly, the Salvador Chiriboga v Ecuador case, also before the Inter-American
Court, concerned the expropriation of land from the Petitioners for the construction
of a public park in Quito. Finding violations for failure to pay appropriate compensa-
tion and for unreasonable delay in domestic judicial proceedings, the Court ordered
the restitution, in cash, of taxes and fines163 and measures of satisfaction in the form
of the domestic publication of its judgment164 —in addition to USD18,705,000 in
monetary compensation.
B. Insights for Fashioning Non-Pecuniary Remedies in Investor-State Disputes

Obviously human rights and the rights of foreign investors are not the same, and
account must be taken of the differences when drawing lessons for non-pecuniary
remedies in investor-State arbitration. For example, the interests protected by the
rights of foreign investors are often (but not always) primarily economic in nature,
while those protected by human rights are often (but not always) primarily non-
economic. As a result, the typical violations of human rights at issue in human rights
disputes tend to be more serious than the typical violations of investor rights at issue
in investor-State disputes. But these differences are not absolute and manifest as
a matter of degree rather than of kind—investor-State disputes can concern serious
non-economic interests, such as in due process or physical security, and human rights
disputes can concern primarily economic interests.
Despite the differences, investor-State disputes share with human rights disputes
the same basic formal structure: the dispute arises between a private person, whether
physical or legal, and a sovereign State based on legal rights deriving from a treaty
entered into by two or more sovereign States. As such, there is a common ques-
tion as to how the general international law of State responsibility, as codified in
the ILC Articles, applies in light of that law’s nominal concern for disputes between
States. Both private persons and institutional investors have somewhat different (but
potentially overlapping) interests and concerns than do sovereign States, including
as relevant to reparations. Human rights adjudicators have already grappled with
these and related questions in developing their practice of providing non-pecuniary
remedies. For this reason, there are important insights to be gained for investor-State
disputes from this analogous area of international practice.
First, human rights practice provides reason to think that the concepts from the
general international law of remedies—as codified in the ILC Articles—may be trans-
posed in appropriate circumstances to disputes between States and private parties.
In particular, the concepts concerning non-pecuniary remedies—such as restitution,
satisfaction and guarantees of non-repetition—have played a central organizing role
in the remedial practice of human rights adjudicators. This was not a blind process
161
Ichvar Bronstein v Peru (n 151) para 181.
162
ibid paras 183, 185, 187.
163
Salvador Chiriboga v Ecuador (n 148) para 125.
164
ibid para 127.
of application of the inter-State remedial framework to the new category of human

rights disputes, but one in which careful consideration was given to the new applica-
tion, including through analysis by dedicated experts165 and by multiple independent
adjudicators. In that process, the concepts were modified and elaborated upon, but
the basic categories of remedies, including non-pecuniary remedies, were drawn from
the inter-State context.
Second, the practice of the human rights adjudicators suggests that the remedies
appropriate for private parties, even if potentially different from those for States,
might be more expansive under certain conditions. For example, these adjudica-
tors order measures of satisfaction or guarantees of non-repetition in many of their
decisions, giving these remedies more extensive application than they receive in the
inter-State context. In addition, they have supplemented the basic categories of inter-
State remedies with an additional category of rehabilitation—which seeks to reverse
the injury done to a private person (to the degree possible) through medical, psycho-
logical or other relevant assistance. In doing so, these adjudicators have paid careful
attention to the types and extent of injury that private persons, as opposed to States,
may suffer, and have sought to ensure full reparation of the injury—reflecting the
underlying guiding principle of the ILC Articles.
Third, the human rights experience underscores the range of injuries that a private
person may suffer from an international law violation, beyond mere economic injury.
These additional dimensions of injury may include, among others, symbolic or
dignitary injury,166 reputational injury,167 injury to the structure of groups or collec-
tivities,168 and injury to a stable and dependable legal relationship with the State.169
Many of these dimensions of injury—including symbolic or dignitary,170 reputa-
tional171 and relational172 —are also recognized by the ILC Articles. By contrast,
attention to non-economic dimensions of injury have largely been lost in investor-
State practice.173 Although the dimensions of injury present in a given investor-State
case may differ—perhaps significantly—from those in human rights cases, human
rights practice provides a reminder that the injury need not be limited to economic
loss.
Fourth, human rights practice provides confirmation that certain types of injuries
suffered by private parties cannot be fully repaired through pecuniary compensation.
Some examples from human rights practice, such as physical injury or deprivation
of liberty, are applicable only by analogy to the investor-State context except in rare
165
This process was led first by Special Rapporteur Theo van Boven and then by Special Rapporteur M Cherif
Bassiouni.
166
See Organization of American States, Inter-American Commission on Human Rights Annual Report 2010, 11
(regarding measures of satisfaction and guarantees of non-repetition).
167
See ibid; Chaparro Álvarez v Ecuador (n 152) para 251.
168
Saramaka People v Suriname, IACHR Series C No 172, Judgment (28 November 2007) para 201 (regarding injury
to the ‘fabric of the society’ of an indigenous community).
169
See Organization of American States (n 166) 11 (regarding guarantees of non-repetition).
170
The ILC Articles recognize that symbolic or dignitary injury may arise from the affront of the breach itself and may
be addressed by measures of satisfaction. ARSIWA (n 6) art 37, commentary para 3.
171
The ILC Articles recognize that reputational injury is difficult to measure in monetary terms, although accepting
that they may be repaired at least in part through monetary compensation. ibid, art 35, para 16.
172
The ILC Articles recognize that the loss of confidence and trust in the ongoing legal relationship with the State,
and may be addressed by measures of satisfaction or guarantees of non-reputation. ibid, art 30, paras 9, 11.
173
Even with moral damages, some investor-State tribunals have applied a standard for ordering moral damages that
depends less on the type of injury caused, and more on the seriousness of the international wrong itself. This approach
deviates from the standard of full reparation for the wrongful injury and makes moral damages quasi-punitive in nature.
cases.174 But the limitations of pecuniary compensation may equally arise when an
investment treaty produces non-economic dimensions of injury (again, such as sym-
bolic or dignitary, reputational injury or injury to the stable legal relationship with
the State). This point bears particular emphasis in light of the Quiborax Tribunal’s
comment that ‘[t]he practice of international human rights courts further shows that
the harm resulting from an individual’s suffering, distress or impairment of significant
values can be compensated in monetary terms’.175 If anything, human rights adjudi-
cators have been exceptionally attuned to the fact that many dimensions of such harm
cannot be fully reduced to monetary terms—even when monetary compensation may
be part of full reparation.
Drawing from the approach of human rights adjudicators, an investor-State tri-
bunal could consider evaluating and fashioning non-pecuniary remedies based on a
careful and full appraisal of the injury suffered, albeit with attention to the specifics
of the investor-State legal context. The guiding principle would remain that of full
reparation, using the analytical categories drawn from the ILC Articles. But, if and
when this approach is appropriate, the analysis should take care to consider whether
a given set of remedies are adequate to achieve that full reparation under the particu-
lar factual circumstances of a given dispute and taking account of the fact that not all
types and dimensions of injury are fully reparable through monetary compensation.
V. CONCLUSION
Our survey of the cases demonstrates that the ILC Articles, or the international law
principles they reflect, often track the form and structure that non-pecuniary reme-
dies have taken when ordered in investor-State arbitrations. However, it is still the
case that tribunals have often not treated them as the ‘primary’ option, generally
relying for justification on themes that extend beyond the ILC Articles themselves.
Despite this, other tribunals, such as the Arif v Moldova Tribunal, commented that
non-pecuniary measures are ‘more consistent with the objectives of bilateral invest-
ment treaties’.176 Regardless of whether one agrees with that assessment, one must
reasonably ask: would a greater emphasis on non-pecuniary remedies, as set forth
in the ILC Articles, where available, refocus the system to consider different reme-
dies that are beneficial to both parties? Non-pecuniary remedies, where possible and
proportionate, might effectively resolve the dispute in a manner that stabilizes the
relationship between the disputing parties and that gives the opportunity to the State
to make things right with a successful investor/claimant.
174
Desert Line Projects LLC v The Republic of Yemen, ICSID Case No ARB/05/17, Award (6 February 2008) paras 179,
185; von Pezold v Zimbabwe (n 5) paras 918–19.
175
176
Arif v Moldova (n 5) para 570.

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ICSID Review, Vol. 37, No. 1-2 (2022), pp.

Abstract—Although non-monetary remedies for international law violations are a fix-

II. THE RELIANCE BY TRIBUNALS ON THE ILC

The ILC Articles define these obligations in the following terms:

Our survey of published decisions revealed that 36 investor-State arbitrations have

A. Are the ILC Articles Applicable in Investor-State Arbitrations?

B. The Power of an Investor-State Tribunal to Grant Non-Pecuniary Remedies

C. The Content of Non-Pecuniary Remedies Granted in Investor-State

D. Refusing Non-Pecuniary Remedies on the Basis of Impossibility or

III. OTHER THEMES PREVALENT IN DECISIONS

A. Deference to the Sovereignty of a State

A similar theme arose in several of the decisions on cases concerning Spanish

a license, or any other foreign investor’s entitlement, specific performance must be

Despite these considerations, the Occidental Tribunal also separately analyzed

B. The Unenforceable Nature of a Non-Pecuniary Award

Indeed, pecuniary remedies, as opposed to non-pecuniary remedies, may raise

order pecuniary payment to the Claimant as an alternative to the withdrawal of

C. The Need for the Parties to Consent to a Non-Pecuniary Remedy

IV. LESSONS FROM HUMAN RIGHTS PRACTICE

A. Overview of Non-Pecuniary Remedies before Human Rights Adjudicators

majority shareholder’.161 It observed that the judgment itself amounted to a measure

B. Insights for Fashioning Non-Pecuniary Remedies in Investor-State Disputes

of application of the inter-State remedial framework to the new category of human

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