A number of
high-profile arbitration proceedings have been initiated, challenging the
legality of sanctions under international investment law. These include Mikhail
Fridman’s USD fifteen billion claim against Luxembourg for the implementation
against him of the sanctions regime adopted by the EU in response to the
Russian invasion of Ukraine. This contribution will focus on the heretofore
unexplored question of available remedies in such cases, particularly damages
and their quantification. Three main questions will be addressed in turn: first
that of the compensable harm for which compensation may be sought, second that
of the potential relevance to the assessment of damages of public interest
considerations, and third the possible availability of non-pecuniary relief.
Through an examination of how these remedial matters are addressed in other
jurisdictional settings and the principles of customary international law as
generally interpreted and applied by past arbitral tribunals, I will argue that
claims such as Mr Fridman’s should normally not lead to large sums of damages,
be resolved primarily through non-pecuniary remedies, and ultimately may serve
to reconsider some tendencies found in the arbitral case law that have
misguidedly led to an inflation of ISDS awards.