Informal instruments to impose human rights obligations on foreign investors: An emerging practice of legality?

2020 ◽  
pp. 1-18
Author(s):  
Jean-Michel Marcoux
Keyword(s):  
Human Rights ◽  
International Investment ◽  
Intergovernmental Organizations ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements ◽  
Sense Of Obligation

Abstract In parallel to the negotiation of international investment agreements to protect foreign investment, intergovernmental organizations have deployed considerable efforts to adopt and implement standards of conduct for business enterprises operating abroad. Despite their informal character under international law, these instruments are increasingly mentioned in international investment agreements and investment arbitration. How can references to informal instruments elaborated by intergovernmental organizations contribute to the imposition of human rights obligations on foreign investors in international investment law? Drawing upon the interactional theory developed by Jutta Brunnée and Stephen J. Toope, this article considers these references as a practice that has the potential to strengthen the normative pull towards compliance with human rights norms. In addition to emphasizing the role of international investment law as a relevant forum to develop a practice surrounding these informal instruments, it assesses whether the use of these instruments by members of a community of practice is intended to establish a genuine sense of obligation and to impose human rights obligations on foreign investors. Even if some instances evidence a practice that strengthens such a sense of obligation, most of the references included in international investment agreements and investment arbitration do not render a practice of legality.

Investor Obligations for Human Rights

2020 ◽  
Author(s):  
Barnali Choudhury
Keyword(s):  
Human Rights ◽  
Corporate Responsibility ◽  
International Investment ◽  
International Investment Law ◽  
Business And Human Rights ◽  
International Investment Agreements ◽  
Human Rights Movement ◽  
Investment Law ◽  
Human Rights Norms ◽  
Investment Agreements

Abstract Despite progress being made in the business and human rights field in defining corporate responsibility for human rights, defining foreign investors roles vis-à-vis human rights remains mainly stagnant. The idea that businesses have responsibility for human rights is well ensconced in global norms and is based on society's expectations of business in the 21st century. Yet despite this widespread recognition, international investment law is silent on the matter. This leaves a disconnect between the norms dictating the corporate responsibility for human rights in public international law and those found in international investment law. One way to better align progress in the business and human rights movement with international investment law is to introduce investor obligations for human rights. These obligations can be located both in investment treaties as well as in non-treaty sources. Moreover, investment arbitration provides multiple entrypoints for tribunals to consider such obligations, for example through counterclaims, jurisdictional claims, or admissibility claims, among others. Two primary benefits arise from introducing investor obligations for human rights. First, it can act as vehicle by which business and human rights norms, generally, can be enforced. Second, and more importantly, introducing investor obligations for human rights can help to better contextualize the interpretation of IIAs. Introducing such obligations can be used to remind tribunals that international investment law operates in a system that includes non-investment concerns such as human rights. Considering such obligations, in and of themselves, however, are unlikely to prompt wider changes in international investment law. Nevertheless, including investor obligations in international investment law may prompt tribunals to give more balanced interpretations to international investment agreements. This can work towards ensuring that international investment law serves its ultimate aim of promoting a state’s development.

The Role of International Investment Law in the Business and Human Rights Legal Process

2019 ◽  
Vol 21 (1) ◽  
pp. 35-55
Author(s):  
Ludovica Chiussi
Keyword(s):  
Human Rights ◽  
International Investment ◽  
International Human Rights Law ◽  
Corporate Accountability ◽  
International Investment Law ◽  
Business And Human Rights ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

Abstract This article examines the interplay between international investment law and international human rights law in order to assess whether the former can be used to foster corporate accountability for violations of human rights. The role of international investment agreements in ensuring corporate compliance with human rights will be addressed, together with the approach to human rights violations of corporations by international investment tribunals. Whilst acknowledging some inherent limits of IIL, the underling argument of the paper is that rebalancing rights and obligations of investors may give teeth to corporate human rights accountability, while also benefitting the legitimacy of IIL.

scholarly journals The Role of Proportionality in International Investment Law and Arbitration: A System-Specific Perspective

2020 ◽  
Vol 89 (3-4) ◽  
pp. 471-491
Author(s):  
Eric De Brabandere ◽  
Paula Baldini Miranda da Cruz
Keyword(s):  
Dispute Settlement ◽  
Ad Hoc ◽  
International Investment ◽  
International Investment Law ◽  
Uniform Approach ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

Abstract In this article, we examine the place of proportionality and related tests in international investment law and arbitration by looking specifically at the challenges faced by this field on applying proportionality coherently and consistently. We also assess where proportionality has been used in international investment law and arbitration. We argue that a sound appreciation of proportionality in international investment law requires taking into account the inherently imbalanced conception of international investment agreements, the incoherence of the international investment law regime, and the ad hoc dispute settlement method tasked with applying and interpreting a variety of imprecise and diverging norms. Therefore, international investment law and arbitration have not developed an institutionalised approach towards proportionality. Since investment agreements and international investment arbitration form a rather incoherent collective of cases and, as a result, have not developed a single or uniform approach towards proportionality, there is a tendency to individually approach cases.

Social movements, reframing investment relations, and enhancing the application of human rights norms in international investment law

2020 ◽  
pp. 1-28
Author(s):  
Moshe Hirsch
Keyword(s):  
Human Rights ◽  
Social Movements ◽  
International Investment ◽  
Human Rights Law ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Public Pressure ◽  
Local Actors ◽  
Investment Law

Abstract The recent moderate trend to increasingly apply human rights law in investment awards is accompanied by certain new investment treaties which include expressed human rights provisions. An analysis of recent investment awards indicates that though there are some ‘winds of change’ in this field, it is equally noticeable that human rights law is far from being mainstreamed in international investment law. Investment arbitration procedural law is also undergoing a process of change, and the new procedural rules tend to enhance public elements in the investment arbitral system. This study is aimed at explaining these recent legal changes, highlighting the role of social movements in reframing investment relations as well as increasing public pressure to apply human rights law. These framing changes concern broadening the frame of investment arbitration (beyond the foreign investor–host state dyad), reversing the perceived balance of power between investors and host states, and zooming-in on local individuals and communities residing in host states. The discussion on factors impeding legal change in this field emphasizes the role of the private legal culture prevalent in the investment arbitration system, which is reflected and reinforced by certain resilient socio-legal frames. Informed by this analysis, the study suggests some legal mechanisms which can mitigate the inter-partes frame, and increase the application of human rights law in investment arbitration; inter alia, rigorous transparency rules that are likely to facilitate increased public pressure on tribunals and increase the participation of social movements representing local actors in arbitral processes.

HUMAN RIGHTS IN INTERNATIONAL INVESTMENT LAW: THE 2016 MOROCCO–NIGERIA BILATERAL INVESTMENT TREATY

2019 ◽  
Vol 68 (3) ◽  
pp. 761-770 ◽  
Author(s):  
Niccolò Zugliani
Keyword(s):  
Human Rights ◽  
International Investment ◽  
African Countries ◽  
Socially Responsible ◽  
Bilateral Investment Treaty ◽  
International Investment Law ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Fertile Ground ◽  
Investment Agreements

AbstractThe 2016 Morocco–Nigeria bilateral investment treaty (BIT) stands out from other such treaties because of its innovative human rights approach to the protection and promotion of foreign direct investment. Human rights permeate its approach to the regulation of investment in a manner which is most unusual in international investment agreements (IIAs). As a result, this is the most socially-responsible BIT currently concluded. Although it remains exceptional within the investment-treaty framework, the treaty reflects African initiatives to ensure that the next generation of BITs encourages more responsible investments. As such, it shows that human rights-compliant investment treaties can find fertile ground in developing African countries and it sets an example for current and future negotiations aimed at fostering respect for human rights in investment activities.

International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?

2017 ◽  
Vol 18 (5-6) ◽  
pp. 942-973
Author(s):  
Romesh Weeramantry
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Free Trade Agreements ◽  
International Investment ◽  
Court System ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Agreements

Abstract Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.

The Treatment of Small and Medium-Sized Enterprises in International Investment Law

2017 ◽  
Author(s):  
Joachim Karl
Keyword(s):  
Great Majority ◽  
International Investment ◽  
Negative Effects ◽  
International Investment Law ◽  
International Investment Agreements ◽  
Internationalization Strategies ◽  
Investment Law ◽  
Almost All ◽  
Investment Agreements

Small and medium-sized enterprises (SMEs) are the backbone of almost all economies, employing the great majority of the workforce, and making the biggest contribution to GDP. To some extent, they are also active as outward foreign investors or are linked to inward foreign investment through supply chains. This chapter analyses the role of international investment law for the internationalization strategies of SMEs. It explores to what extent international investment agreements specifically promote, facilitate, and protect investments involving SMEs, referring to concrete treaty examples. It also examines the risk of potential negative effects of certain IIA provisions on domestic SMEs. On the basis of this analysis, the chapter makes a number of suggestions regarding how international investment law could further improve the situation of SMEs.

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

2016 ◽  
Vol 7 (2) ◽  
pp. 287-318
Author(s):  
Dilini PATHIRANA
Keyword(s):  
Sri Lanka ◽  
Dispute Settlement ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
Global Context ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

AbstractSri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

scholarly journals Harmonizing Commercial and Investment Arbitration: Conflict Dynamics

2021 ◽  
Vol 12 (2) ◽  
pp. 283-313
Author(s):  
Jaya Vasudevan
Keyword(s):  
International Investment ◽  
Commercial Arbitration ◽  
True Nature ◽  
International Investment Law ◽  
Arbitration Clause ◽  
Investment Arbitration ◽  
Independent Analysis ◽  
Investment Law ◽  
Suitable Framework ◽  
Investment Agreements

This article provides an independent analysis of the scope and extent of arbitration under investment agreements, and the implications of the possible convergence in the process of harmonization of international commercial arbitration law.The successful settlement of any dispute depends on the compatibility of the nature of the dispute with the technique to which it is submitted for resolution. In the last decade, there was a constant increase in the number of disputes that were subjected to arbitration and a major chunk of those disputes covered a comparatively new but known area called international investment law. With economic globalization allowing the free flow of foreign direct investment (FDI) in and out of a country, the existing regulatory framework in international law to standardize investment liberalization is often seen as ineffective, hence the consequent disputes. Here, arbitration offers a suitable framework for the amicable settlement of commercial disputes covering investment agreements with the assistance of bilateral or multilateral agreements between the states. Preferential trade agreements pertaining to investment often contain an arbitration clause for the settlement of future disputes between parties. At this juncture, one may find that there exists a fundamental dilemma in ascertaining the true nature of investment arbitration and how it is different from commercial arbitration. For example, the protection being offered to human rights under the purview of investment arbitration may generate doubts in the minds of investment arbitrators. In commercial arbitration, divergences in a pluralistic order become particularly relevant whereas the diverse legal cultures supported by individual constitutional frameworks have a direct impact on investment arbitration due to their practical application. The article also discusses the need for harmonized rules governing arbitration procedures while maintaining the functional dissimilarities between commercial and investment arbitration.

scholarly journals Obtaining Damages for Corporate Human Rights Violations in Investment Arbitration Through a Procedural Lens

2021 ◽  
Author(s):  
Yasmin S
Keyword(s):  
Human Rights ◽  
International Investment ◽  
Human Rights Violations ◽  
Human Rights Abuses ◽  
International Investment Law ◽  
The Past ◽  
Investment Arbitration ◽  
Violent Acts ◽  
Public Scrutiny ◽  
Investment Law

Over the past decades, transnational corporations have come under increasing public scrutiny for their involvement in human rights abuses, particularly in developing countries. One may think of violent acts against local communities, slave labor, and grand scale environmental pollution. International investment law protects and safeguards the rights of foreign investors but falls short of holding them accountable to societies where they operate. Recently, a few arbitral tribunals have grappled with the question of whether corporations can be held accountable for illegalities that constitute human rights violations inflicted upon the host state or its people. This article discusses the arbitral treatment of corporate human rights violations by investment tribunals in three treaty-based cases: Copper Mesa v. Ecuador, Burlington v. Ecuador and Urbaser v. Argentina and draws on recent scholarly work on causation in investor-state arbitration to evaluate their approaches.

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