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  • 7 - Investment Tribunals, the Duty of Compensation in Cases of Necessity

  • from Part II - The Interpretation of Secondary Rules in International Investment Law
  • Edited by Panos Merkouris, Rijksuniversiteit Groningen, The Netherlands, Andreas Kulick, Eberhard-Karls-Universität Tübingen, Germany, José Manuel Álvarez-Zarate, Universidad Externado de Colombia , Maciej Żenkiewicz, Nicholas Copernicus University of Toruń, Poland
  • Edited in association with Konrad Turnbull, Rijksuniversiteit Groningen, The Netherlands
  • Book:
    Custom and its Interpretation in International Investment Law
    Published online:
    04 January 2024
    Print publication:
    18 January 2024, pp 151-178
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  • Summary

    Do States owe a duty to compensate material loss to investors, when the loss is caused by acts covered by the defence of necessity? This is a difficult question, which has troubled international lawyers (as well as domestic law theorists and moral philosophers) for a long time. Investment tribunals too have been faced with this question. Indeed, the Articles on State Responsibility allow for the possibility that such compensation might be due. But they do not specify in which circumstances the duty arises. Unsurprisingly, investment tribunals have given this question widely different answers. Perhaps even more surprisingly, they have rarely queried the positive law status of this duty: they have, for the most part, foregone assessing evidence of customary law (or general principles) for this duty. Tribunals have either derives be duty by implication from the rule of necessity, denied its existence, or taken an agnostic stance. However, when the evidence is properly assessed, it is clear that much as such a duty would be desirable, it is not yet recognised as a matter of general customary law.