scholarly journals The (Ir)relevance of Transnational Public Policy in Investment Treaty Arbitration – A Reply to Jean-Michel Marcoux

2020 ◽  
Vol 21 (6) ◽  
pp. 847-866
Author(s):  
Eric De Brabandere
Keyword(s):  
Public Policy ◽  
Human Rights ◽  
International Investment ◽  
International Human Rights ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
International Human ◽  
Rights Issues ◽  
Investment Treaty Arbitration

Abstract In his article ‘Transnational Public Policy as a Vehicle to Impose Human Rights Obligations in International Investment Arbitration’, Jean-Michel Marcoux investigates whether international investment tribunals can rely on transnational public policy to impose human rights obligations on investors. While I generally side with the idea that international human rights as such are highly relevant in (some) international investment arbitrations, I argue in this article that transnational or truly international public policy as a concept is largely, and as a matter of principle, irrelevant in investment treaty arbitration. Secondly, even if one were to accept that transnational public policy has a role to play, I question the usefulness of framing various human rights issues as questions of ‘transnational public policy’.

The Need to Make Sense of a Practice in Investment Arbitration: A Response to Eric De Brabandere

2020 ◽  
Vol 21 (6) ◽  
pp. 867-879
Author(s):  
Jean-Michel Marcoux
Keyword(s):  
Public Policy ◽  
Human Rights ◽  
International Investment ◽  
Human Rights Violations ◽  
International Investment Law ◽  
Legal Norms ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Present Response ◽  
Investment Treaty Arbitration

Abstract In his article entitled ‘The (Ir)relevance of Transnational Public Policy in Investment Treaty Arbitration – A Reply to Jean-Michel Marcoux’, Eric De Brabandere argues that transnational public policy does not have any significant role to play in investment treaty arbitration, both as a matter of principle and as an avenue to address human rights violations by foreign investors. The present response suggests that a more fundamental point of disagreement between our positions relates to the role of the practice of tribunals in shaping legal norms in international investment law. Inspired by the ‘practice turn’ in the study of international law, it suggests that the relevance and the normativity of transnational public policy are constituted by the practice of tribunals. Addressing human rights violations as an integral part of transnational public policy can thus be considered as a potential evolution of this practice in investment arbitration.

scholarly journals A Nightmare or a Noble Dream? Establishing Investor Obligations Through Treaty-Making and Treaty-Application

2020 ◽  
Vol 5 (1) ◽  
pp. 105-129 ◽  
Author(s):  
Markus KRAJEWSKI
Keyword(s):  
Human Rights ◽  
International Investment ◽  
International Human Rights ◽  
Business And Human Rights ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Law ◽  
International Human ◽  
Business Entities ◽  
Recent Initiative

AbstractThis article assesses different approaches currently discussed and developed in international human rights and investment law to establish investor obligations. The article begins with a general framework of analysing and comparing these approaches. Next, attempts to include direct obligations of business entities in international human rights treaties are discussed. Despite earlier indications the recent initiative to create a legally binding instrument on business and human rights will most likely not include direct obligations for business entities. Subsequently, the article assesses the development of investor obligations in new international investment treaties and through the interpretation and application of existing international investment agreements. Arguably, the former will not lead to binding obligations in the foreseeable future and the latter rests on methodologically questionable grounds. Consequently, the article suggests that the way forward will require domestic legislation in host and home states to establish investor obligations which can be taken into account when interpreting existing investment treaty clauses requiring the investor to adhere to domestic law. This would reflect recent trends both in investment law reforms as well as the business and human rights movement.

The Applicability of Human Rights Law in International Investment Disputes

2019 ◽  
Vol 34 (1) ◽  
pp. 136-155 ◽  
Author(s):  
Fabio Giuseppe Santacroce
Keyword(s):  
Human Rights ◽  
International Investment ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
International Human ◽  
Human Rights Norms

Abstract Human rights are becoming increasingly relevant in international investment disputes. A question therefore arises as to whether the application of human rights law to those disputes is justified. This article answers that question in the affirmative. In particular, it suggests that there are at least four legal grounds (which may operate separately or cumulatively) warranting the application of human rights norms in the context of international investment disputes: (i) the fact that international human rights law is part of international law, which in turn governs the merits of investment disputes; (ii) the presence of express references to human rights in the investment treaty; (iii) the presence of implied references to human rights in the investment treaty; and (iv) the principle of systemic integration. Each of these grounds can be the basis for applying international human rights law as an interpretative tool. Some of them, however, can play a more substantive role and justify the direct application of international human rights norms to the merits of the dispute. This may lead to normative conflicts. The article thus also provides a framework to determine, in case of clashes between international investment law and international human rights norms, which norm should apply in concreto.

scholarly journals Counterclaims Based on International Human Rights Obligations of Investors in International Investment Arbitration

2018 ◽  
pp. 1-30 ◽  
Author(s):  
Patrick Abel
Keyword(s):  
Human Rights ◽  
International Investment ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Human Right ◽  
International Human Rights ◽  
International Investment Law ◽  
Investment Arbitration ◽  
International Human ◽  
Private Actors

The 2016 ICSID award in Urbaser v. Argentina affirmed for the first time the possibility of a counterclaim in investment arbitration based on an international investor obligation under the human right to water. But to denounce a break-through and fundamental change in both international investment and human rights law would be premature. This article deconstructs the award’s reasoning and sheds light on its doctrinal fallacies, in particular the award’s unclear construction of the integration of a human rights obligation into investment arbitration and its misled argumentation on the existence of an international human rights obligation of private actors under the human right to water. Concluding that the award cannot be sustained under the current state of international law, the article then reflects on the potential of the award’s conception of human rights counterclaims for the future of international investment law and international human rights law.

Representing Japan, Defending Human Rights

2020 ◽  
pp. 131-142
Author(s):  
Bill Emmott
Keyword(s):  
Human Rights ◽  
War Crimes ◽  
Foreign Affairs ◽  
International Human Rights ◽  
Indigenous Minorities ◽  
International Human ◽  
Peace And Reconciliation ◽  
Rights Issues

When Miyoshi Mari joined the Japanese Ministry of Foreign Affairs in 1980 as a trainee diplomat she was the only female recruit out of twenty-eight; in 2016, the ministry recruited ten females and eighteen males. So recruitment is not yet equal but there will in future be a much larger number of potential female ambassadors to follow in Miyoshi-san’s footsteps. She was motivated to become a diplomat by an interest in peace and reconciliation, which similarly drew Osa Yukie to study and then become active in international human rights issues. Osa-san has studied indigenous minorities including Japan’s own Ainu but more recently has specialized in the issues of war crimes and genocide.

The United Nations and Human Rights

1997 ◽  
Vol 25 (1-3) ◽  
pp. 17-34
Author(s):  
Gudmundur Alfredsson
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Technical Assistance ◽  
International Human Rights ◽  
Governmental Organization ◽  
Fundamental Freedoms ◽  
International Human ◽  
The United Nations ◽  
Human Rights Standards ◽  
Rights Issues

International cooperation for the promotion and encouragement of human rights and fundamental freedoms is one of the very purposes of the United Nations, according to article 1 of the Organization's Charter. The mandate is clear. In order to live up to this purpose, much work has been undertaken by establishing international human rights standards and by encouraging and persuading states to comply with these same standards.This presentation, by way of an overview, briefly describes the international human rights instruments and the classification and contents of the standards contained therein. The methods employed by the United Nations and non-governmental organization (NGOs) for the realization of the standards are also outlined, including monitoring procedures, technical assistance and other activities concerned with the protection and promotion of human rights. Finally, the presentation identifies UN institutions where human rights issues and procedures are debated and decided upon.

Transnational Public Policy as a Vehicle to Impose Human Rights Obligations in International Investment Arbitration

2020 ◽  
Vol 21 (6) ◽  
pp. 809-846
Author(s):  
Jean-Michel Marcoux
Keyword(s):  
Public Policy ◽  
Human Rights ◽  
International Investment ◽  
International Consensus ◽  
Foreign Investors ◽  
Material Sources ◽  
Investment Arbitration ◽  
Human Rights Norms ◽  
The Right

Abstract International investment arbitration has been criticized for its general reluctance to consider human rights concerns related to foreign investors’ activities. By contrast, arbitration tribunals have relied on transnational public policy to prevent a claimant whose investment is tainted with illegality from obtaining redress. This article explores how human rights norms could be conceptualized as part of transnational public policy to impose obligations on foreign investors. It proceeds in three steps. First, it addresses the role of transnational public policy in investment arbitration. Second, the article identifies the material sources considered by tribunals to delimit the content of the doctrine. Third, it focuses on three norms – the protection of fundamental human rights, a corporate responsibility to respect human rights and the right of Indigenous Peoples to be consulted – for which tribunals have found an international consensus and that could be conceptualized as norms of transnational public policy.

Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic ICSID

2017 ◽  
Vol 111 (3) ◽  
pp. 744-750
Author(s):  
David Attanasio ◽  
Tatiana Sainati
Keyword(s):  
Human Rights ◽  
International Investment ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Argentine Republic ◽  
Explicit Recognition ◽  
International Human ◽  
To Receive

On December 8, 2016, an International Centre for Settlement of Investment Disputes (ICSID) tribunal (the Tribunal) held that international human rights condition the treatment that an investor is entitled to receive from a state and that human rights impose obligations on the investor itself. The Tribunal's explicit recognition of these dual consequences of international human rights law breaks new ground. International investment tribunals have not previously held that human rights obligations have any effect on protections due to investors, much less that international human rights law might establish separate obligations for investors.

International Investment Arbitration

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
International Law ◽  
Present State ◽  
Critical Review ◽  
International Investment ◽  
Comprehensive Description ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Author Team ◽  
Substantive Law ◽  
Investment Treaty Arbitration

This is the long-awaited second edition of this widely-referenced work on the substantive law principles of investment treaty arbitration. It forms a detailed critical review of the substantive principles of international law applied by investment arbitration tribunals, and a clear and comprehensive description of the present state of the law. The first edition met with immediate success as a result of the authors’ achievement in describing and analysing the volume of law created, applied and analysed by tribunals. The second edition is fully updated to take account of the arbitration awards rendered in the period since 2007. Written by an internationally recognised author team, it is now the most comprehensive and up to date work in its field and no practitioner or academic can afford to be without it.

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