There is although no exact proof of compliance issue and is left from case to case issue. The very system of international investment arbitration is one for the compensation for the damages. But not compliance through withdrawal of a measure or putting an end to certain acts or lack of action on the part of the state.2 The damages or the losses for the violation of investment treaties fulfil a purpose of compensation for an investor,
and the international investment system is not one of the exemplary or punitive damages if the state is been doing wrong by the state. Moreover there are different concept like annulment, set aside and enforcement which do not reflect the decisions by the parties to ISDS dispute not to enforce or to abide by the final award. Further this can be seen as a very good plan to first exhaust the full range of remedies which are available to
challenge an award in the absence of an appeal system. Therefore states have used this strategy and has become very good in their defence and therefore take all the possible routes to challenge or delay an enforcement. Such recourse is the very essence of the whole process and should not been interpreted in any light as wrongful on the part of the party using the same.3
But the situation took a upside down when a situation arise in which the U.S President had announced that he had suspended all the trade benefits under the general system of general preferences program for its neighbour state Argentina for the reason that the country has failed to pay the compensation which were ordered by two awards passed against the united state by the ICSID tribunals. This came in the context of the international treaty relationship and the trade retaliation as it is considered to be an international trading system. For the same it is very safe to argue that there is no need for any sanctions system in the ISDS case and therefore not warranted in the current settings. Some of the arguments which can be set out to prove the above fact are as follows the very first and the basic reason is the economic fairness comparing the domestic investors. In the modern today world foreign investors enjoy a very protective regime be it targeted investors laws, codes, incentives under the domestic framework and specific state contract. These commitments by the host state a very friendly and a protective environment for foreign operators in the host countries seeking to attract their investment.4
2017-18-Vol3-Issue2-_25
