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Awarding damages or demanding performance? : a performance-oriented approach for international investment law
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São Paulo Law School of Fundação Getulio Vargas, Direito SP Research Paper Series; 2014/109
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VIDIGAL, Geraldo, Awarding damages or demanding performance? : a performance-oriented approach for international investment law, São Paulo Law School of Fundação Getulio Vargas, Direito SP Research Paper Series, 2014/109 - https://hdl.handle.net/1814/35020
Abstract
This paper examines two different approaches to judicial protection of entitlements in international economic law. One of them, ‘performance-oriented’, is applied by WTO adjudicators. Performance-oriented remedies focus on inducing wrongdoers to resume compliance with the underlying substantive rules. The other, ‘reparation-oriented’, is applied overwhelmingly in international investment law. Reparation-oriented remedies aim at offsetting the injury caused to private parties by the wrongful conduct. This paper discusses the utility of performance-oriented remedies within WTO law, and assesses the possibilities for otherwise reparation-oriented investment tribunals to have recourse to these remedies. It examines a number of decisions that, it is argued, favor performance over pecuniary compensation. From the viewpoint of the state found in breach, compensation then appears as a threatened sanction for non-compliance with the performance obligations determined.