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Research

Remedies in International Investment Law and the Development of Remedies in Customary International Law

Sean Stephenson joined the ACIL and the Faculty of Law in 2018. His current research project is tied to the LEXMERCPUB project at the ACIL. His research analyzes the spectrum of remedies in international investment law. More specifically, it analyzes the international norms and principles of remedies against the current practice of international investment tribunals when awarding remedies under investment treaties to determine whether investment tribunals are developing a lex specialis relating to international investment law remedies or driving the creation of international law.

The analysis will develop an analytical framework to address developments in the law of remedies, and properly classify these developments, providing a clear understanding of the state of remedies. It will provide an accurate picture of norms and principles relating to the spectrum of remedies claimed by investors and states and those applied by investment tribunals. The analysis will allow for conclusions to be drawn on whether international remedy norms and principles are being followed, where there is a divergence from international remedy norms in practice through the creation of an investment law lex specialis, and where, if any, new general norms and principles have been developed by international investment tribunals. In this regard, the research will also contribute an analysis and case studies on remedies relating to fragmentation of international law and the development of customary international law through its analysis on general international law and its relationship to international investment law.

Clarity on the norms and principles of remedies will allow for more certainty and predictability in decision-making, which in turn will support the legitimacy of the international investment dispute system. This is crucial given the public nature of investment law, where disputes focus on public acts and where the ultimate remedy sought is typically compensation from public funds. The importance of understanding remedies available and having certain and predictable outcomes relating to remedies is critical for both investors and states in making educated decisions on pursuing and settling dispute. This is specifically true of investor-state disputes which are resolved by arbitration, and are not subject to judicial appeal, with only narrow grounds allowed for any annulment.

Sean’s research is supervised by Stephan Schill and Ingo Venzke.