Abstrak

Kembali

The investor–State Tribunals in Chevron v Ecuador and White Industries v India clarified that provisions in international investment agreements affording investors access to ‘effective means’ to enforce their rights are not simply positive restatements of the customary international law requirement that investors not be denied justice. Those Tribunals found that delays in domestic judicial proceedings can breach the ‘effective means’ standard even if they do not amount to denial of justice. This distinction was not, however, reflected in the remedies awarded. Rather, the typical denial of justice remedy, compensation equal to the value of the redress sought in domestic proceedings, was awarded for breach of the ‘effective means’ standard. This article analyses the elements of the injuries caused by delays breaching the two standards and warns that compensation might not always be the appropriate remedy for delays breaching the ‘effective means’ standard. It suggests that it might be more appropriate to award remedies that provide States with ‘just a little more time’.