Application of the Principle: Fundamentals

Leyla Bahmany

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Chapter 8 Application of the Principle: Fundamentals

In: Double Recovery in Investment Arbitration

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Leyla Bahmany

Leyla Bahmany
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Type:: Chapter

Pages:: 297–315

DOI:: https://doi.org/10.1163/9789004549463_015

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Abstract

This book analyses the risk of double recovery in investment arbitration and suggests a solution to the problems it creates. The risk of double recovery has not been thoroughly addressed by investment arbitration tribunals or commentators, and this has resulted in host states’ concerns about the integrity of the ISDS system. The solution that is set forth in this work neither suggests a fundamental change to present legal doctrines and practice, nor requires a fundamental change to the regulatory system to take place in order for the solution to become operative. The proposed solution consists of two parts: first, recognising the prohibition of double recovery as a principle in international investment law; and second, setting out a legal mechanism to implement the principle in order to avoid double recovery. The mechanism (which covers both scenarios of parallel proceedings and sequential proceedings) utilizes three procedural tools: the res judicata principle, the lis pendens principle, and the power of tribunals/courts to stay proceedings. Traditionally, for res judicata and lis pendens to be applicable, a triple identity test (same parties, same cause of action, and same relief/object) must be met. The book argues that the traditional application of the identity test in this international context is misguided, and proposes instead a coherent, principled identity test that is in line with the underlying policies of international investment law. The book also explains that the term “double recovery” does not entirely correspond to the phenomenon it is known to represent and suggests that the term “double compensation” be used instead.

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Double Recovery in Investment Arbitration

Toward a Principled Treatment of Double Compensation

Series: Nijhoff International Investment Law Series, Volume: 24

Cover Double Recovery in Investment Arbitration

E-Book ISBN:: 9789004549463

Publisher:: Brill | Nijhoff

Print Publication Date:: 03 Aug 2023

Subjects
- International Law

Front Matter

Part I Contours of the Problem

Part II Existing Approaches to Double Compensation

Part III Restating the Law on Double Compensation

Appendices

Back Matter

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Chapter 8 Application of the Principle: Fundamentals

Abstract

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Double Recovery in Investment Arbitration

Toward a Principled Treatment of Double Compensation

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