Comparing Approaches to Calculating Compensation: Lessons for investment arbitration reform

In recent years, investor–state arbitral tribunals have awarded increasingly high amounts of compensation to foreign investors—exacerbating the negative socio-economic impact of investment treaties in practice. Because of this, the approaches used by arbitral tribunals to determine compensation amounts are drawing ever-greater scrutiny from policy-makers, academia, and civil society.

One question that has emerged is this: How are compensation awards being calculated elsewhere? This webinar marked the launch of a brand new IISD policy paper that seeks to answer this question. Approaches of International Courts and Tribunals to the Award of Compensation in International Private Property Cases examines how other international courts and tribunals approach the awarding of compensation in international property claims cases.

The paper explores and compares practices of the Permanent Court of International Justice, the International Court of Justice, and the European Court of Human Rights, among others, drawing out lessons and innovations applicable to international investment arbitration reform.

This webinar brought together the paper's lead author, Esmé Shirlow, and three distinguished speakers to discuss the paper and its implications for the ongoing reform of investor–state dispute settlement.

Speakers

Moderator

• Sarah Brewin, Senior Law Advisor and Coordinator of Advisory Services, Economic Law and Policy Program, IISD

Speakers

• Esmé Shirlow, Associate Professor, Australian National University School of Law; Report Author
• Simon Batifort, Partner and Brussels Managing Partner at Curtis, Mallet-Prevost, Colt & Mosle LLP
• Veronika Fikfak, Associate Professor in Human Rights Law at the Centre of Excellence for International Courts at the University of Copenhagen
• Martins Paparinskis, Reader in Public International Law at the Faculty of Laws, University College London

IISD’s new research paper

We asked Esmé Shirlow about the paper and what lessons could be drawn from this comparative research. Watch what she had to say:

Interested in learning more?

This webinar is the fourth in IISD’s webinar series on compensation under international investment law, following on from:

• Damages in International Investment Law
• Valuation in Investment Arbitration: Spotlight on discounted cash flow analysis
• Compensation Under Investment Treaties: Exploring ideas for reform

IISD aims to continue exploring this topic with further webinars throughout 2022. In addition to the paper that will be launched at this event, IISD has also published:

• Compensation Under Investment Treaties: What are the problems and what can be done?—a concise brief for policy-makers.
• Compensation Under Investment Treaties—a longer paper discussing existing principles of compensation and possible reforms in greater depth.