联合国贸易发展委员会-投资者与国家争端解决程序中的赔偿与损害赔偿（英）

1#1 SEPTEMBER 2024IIA Issues NoteInternational Investment AgreementsCompensation and Damages in Investor-State Dispute Settlement Proceedings#1 SEPTEMBER 2024 Damages awards are growing. Tribunals have awarded sums exceeding US dollars 100 million in more than a quarter of all investor-State dispute settlement (ISDS) cases won by investors. Old-generation international investment agreements (IIAs) do not sufficiently define the compensation rules for treaty breaches. In the absence of specific treaty provisions, the issue is governed by customary international law which leaves scope for ISDS tribunals’ interpretation. Different techniques to determine the amount of compensation exist. ISDS tribunals often rely on those that use a wide range of speculative assumptions about future profits and risks.HIGHLIGHTSIIA Issues NoteInternational Investment AgreementsAverage ISDS award size (million USD)1994-20032004-20132014-20232598256Source: UNCTAD ISDS Navigator database, accessed 15 August 2024.  In many recent IIAs, States seek to counter the trend of excessive awards. Treaty parties can specify ISDS tribunals’ approaches to compensation, for example, by limiting the award of hypothetical future profits, prescribing guidance on valuation techniques, or developing techniques to disincentivize excessive claims. Ninety-eight per cent of ISDS cases are based on old-generation IIAs that typically lack any clear guidance on compensation. Reforming these treaties is crucial to reduce the risk of excessively large awards.2#1 SEPTEMBER 2024IIA Issues NoteInternational Investment AgreementsIntroductionInternational investment agreements (IIAs) form a regime consisting of over 2,600 treaties that are currently in force. Approximately 90 per cent of these are old-generation agreements, concluded in the 1980s, 1990s and 2000s. They generally contain unrefined treaty standards and grant broad access to investor–State dispute settlement (ISDS) in the form of binding international arbitration. By the end of 2023, investor claimants had brought at least 1,332 known treaty-based ISDS cases.1 Traditionally, IIAs with ISDS provisions allow arbitral tribunals to order the respondent State to compensate the investor in the form of monetary damages in case of breach. The amounts awarded in ISDS proceedings were comparatively low in the 1990s and the early 2000s when the first ISDS cases were concluded. They have risen significantly over time, especially since 2010. Large damages awards, at times reaching billions of United States dollars (USD), may have serious implications on State’s public finances. They can also contribute to further indebtedness of countries, in particular developing and least developed ones (UNCTAD, 2024a). Concerns about large compensation awards have been raised repeatedly (UNCTAD, 2015, IISD, 2020, Aisbett, Bonnitcha, 2021, Paparinskis, 2022). The increasing amounts of damages awarded by arbitral tribunals are, hence, of significant importan