Journal Article

The Availability of Moral Damages to Investors and to Host States in ICSID Arbitration

Inna Uchkunova and Oleg Temnikov

in Journal of International Dispute Settlement

Volume 6, issue 2, pages 380-402
Published in print July 2015 | ISSN: 2040-3585
Published online June 2015 | e-ISSN: 2040-3593 | DOI: https://dx.doi.org/10.1093/jnlids/idv016
The Availability of Moral Damages to Investors and to Host States in ICSID Arbitration

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

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The present article examines the question of awarding moral damages in ICSID arbitration. Part one discusses whether this remedy may be provided to an investor as a form of compensation. In contrast to previous writings on the subject, we challenge the relative ease with which it has been accepted that investors, especially corporate claimants, may be entitled to moral damages. In part two we tackle the difficult question as to whether the respondent State may present a claim for pecuniary satisfaction for moral damages suffered as a result of the presentation of a fraudulent claim on the part of the claimant. We provide arguments in support of a State’s entitlement to moral damages. We next explore the more difficult question as to whether such a claim may pass through the needle’s eye of Article 46 of the ICSID Convention dealing with the admissibility of counterclaims.

Journal Article.  12522 words. 

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

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