Unjust Enrichment Unjustly Ignored: Opportunities and Pitfalls in Bringing Unjust Enrichment Claims Under ICSID

Abstract

The article seeks to find a space for unjust enrichment in international investment dispute resolution and to demonstrate the ways in which international arbitrators’ sloppiness in applying unjust enrichment begets undesirable results. The article reviews the role of unjust enrichment in international investment disputes, first historical and then hypothetical. By examining historical arbitrations, the Iran-U.S. Claims Tribunal, international and national parameters for unjust enrichment, and reinterpreting influential decisions like Chorzow and ADC v. Hungary the article demonstrates a long history of reliance on unjust enrichment. Consistent reliance supports the idea that unjust enrichment is a general principle of international law. General principles of international law are protected by bilateral investment treaties’ fair and equitable treatment standard. Thus unjust enrichment claims fall under the fair and equitable treatment standard in bilateral investment treaties. Unjust enrichment claims also surmount ICSID’s substantial jurisdictional barriers, and may prove pivotal in international investment cases involving intellectual property disputes. Along the way, the article attempts develop tenets for unjust enrichment that lend themselves to consistent application and hence facilitate the process of fair decision-making.