IISD.org
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Compensation Under Investment Treaties
delay.”
26
The use of the word “prompt” in the Hull formula also indicates that compensation should
be paid without unreasonable delay. The investment treaty between the Association of Southeast
Asian Nations (ASEAN) and India from 2014 contains an explanatory note on the words “without
delay,” clarifying that “there may be legal and administrative processes that need to be observed
before payment can be made.”
2.1.4 Interest
In the mid-1980s, treaty provisions on compensation began including provisions requiring the
payment of interest where there is a delay between the date of expropriation and the date of
compensation. Language as to the applicable interest rate continues to vary, including the “normal
commercial rate,”
27
“current international rates,”
28
simply “interest,”
29
“appropriate market rate,”
30
“usual bank interest,”
31
“normal commercial banking rate,”
32
and “commercially reasonable rate.”
33
Tribunals have understood references to a “commercial” or “market” interest rate as implying
compound interest, rather than simple interest.
34
However, there remains considerable divergence
as to the appropriate rate of interest (see Box 4). Given the lengthy duration of ISDS proceedings,
divergences in the rate of interest applied from date of expropriation through to the date of payment
can lead to very significant dierences in the amount which a state is ultimately required to pay.
The ASEAN–India investment treaty provides for “appropriate interest at the prevailing commercial
rate” but provides in an explanatory note that for Cambodia, Malaysia, Myanmar, Philippines,
Thailand, and Viet Nam that “in the event of delay, the rate and payment of interest of compensation
for expropriation of investments of investors of another Party shall be determined in accordance with
their laws, regulations, and policies provided that such laws, regulations, and policies are applied on a
non-discriminatory basis.”
2.2 Principles Governing Compensation for Breach of
Investment Provisions Other Than Expropriation
Aside from a few exceptions of limited practical relevance,
35
most investment treaties do not contain
provisions dealing with compensation for breaches of the treaty’s other provisions. In the absence of
textual guidance from the treaties themselves, tribunals initially struggled to articulate a consistent
approach to compensation. Some took a conservative approach, limiting compensation to expenditure
26
See, e.g., Kazakhstan–Singapore BIT (2018), art. 6, para. 2.
27
See, e.g., Netherlands–Sri Lanka BIT (1984), art. 6, para. 1; U.K.–Pakistan BIT (1994) art. 5, para. 1.
28
See, e.g., U.S.–D.R.C BIT (1984), art. III, para. 1(e).
29
See, e.g., Romania–Egypt BIT (1994), art. 5, para. 1.
30
See, e.g., Philippines–Argentina BIT (1990), art. IV, para. 2.
31
See, e.g., Germany–Libya BIT (2004), art. 4, para. 2.
32
See, e.g., Ethiopia–Sweden BIT (2004), art. IV, para. 3.
33
See, e.g., Kazakhstan–Singapore BIT (2018), art. 6, para. 2; Canada–Côte d’Ivoire BIT (2014), art. 10, para. 3.
34
E.g. Tidewater v. Venezuela, ICISD Case No. ARB/10/5, Award, 13 March 2015, para. 208.
35
Many investment treaties contain provisions requiring compensation for damage resulting from war, armed conflict or national
emergencies, e.g., Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the
Government of the United Republic of Tanzania for the Promotion and Protection of Investments, U.K.–Tanz., art. 4, (Jan. 7, 1994).
https://investmentpolicy.unctad.org/international-investment-agreements/treaties/bilateral-investment-treaties/3024/united-republic-of-
tanzania---united-kingdom-bit-1994-. Such provisions play little role in investment disputes in practice. It should be noted, however, that
they generally require foreign investors to be compensated on a non-discriminatory basis, which could entail compensation well below
“full reparation” or the fair market value of a damaged investment.