Journal Article

Moral Damages in Investment Arbitration: A Role for Human Rights?

Conway Blake

in Journal of International Dispute Settlement

Volume 3, issue 2, pages 371-407
Published in print July 2012 | ISSN: 2040-3585
Published online April 2012 | e-ISSN: 2040-3593 | DOI: https://dx.doi.org/10.1093/jnlids/ids003
Moral Damages in Investment Arbitration: A Role for Human Rights?

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  • Arbitration
  • Private International Law and Conflict of Laws
  • Public International Law
  • Settlement of Disputes

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Reparations for moral damages remain an uncertain area of arbitral law and practice. Despite clear principles governing compensation for moral injury in international law, arbitral tribunals have displayed a reticence in awarding this remedy. Consequently, the existing investment jurisprudence on moral damages has been thin and under-articulated. Moreover, existing awards have introduced troubling departures from generally accepted principles of international law, which threaten to significantly limit the scope of this remedy in investment law. This uncertainty not only impacts parties to arbitration, but implicates wider issues about the efficacy of the regime for the international protection of investment. Against this backdrop, this article suggests that arbitral tribunals may begin to look to international human rights courts for guidance on the issue of moral damages. The article argues that human rights jurisprudence elaborates accepted international legal principles on reparations, and represents a potentially significant jurisprudential resource for arbitral tribunals approaching this uncertain area of investment law.

Journal Article.  17651 words. 

Subjects: Arbitration ; Private International Law and Conflict of Laws ; Public International Law ; Settlement of Disputes

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