Restitution as Remedy in Disputes Between Investor and State

Restitutionary remedies in international law have been based on the notions of unjust enrichment. There has, however, been a certain amount of scepticism in importing remedies based on restitutive principles into international investment law. This is mainly due to the difficulty in enforcing an award of restitution-in-kind against the sovereign State players in the domain of international investment law. With this backdrop, in the article I look into and analyse the development of restitutionary remedies in international law and their import into investor-State disputes. In addition, I lay out the different ways in which restitution has been codified in investment treaties and other multinational legal instruments and the restrictive nature of the implementation of restitution as a remedy in investor-State disputes. In the subsequent parts of the article I have made an effort to illustrate the extent of the effectiveness of restitution in cases of expropriation and to look at the remedy through the lens of a host State. I conclude the article by delineating certain policy and structural modifications that are likely to render restitution a more acceptable remedy in international investment law.