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 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’.

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.

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.

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.

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.

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.

The Rule of Law Effects of Commercial Arbitration from a Socio-Legal Perspective

2020 ◽  
pp. 678-696
Author(s):  
Thomas Dietz
Keyword(s):  
Systems Theory ◽  
Systems Approach ◽  
International Investment ◽  
Political Scientist ◽  
Political Systems ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Legal Perspective ◽  
Core Idea

This chapter suggests a vision of investment treaty arbitration filtered through the lens of political systems theory. Political systems theory was developed in the 1950s and 1960s by David Easton, an eminent political scientist. The core idea of Easton’s theory is that political systems can be understood as consisting of inputs from various actors that are aggregated and transformed into outputs, where outputs consist of the authoritative allocation of values. As such, the political systems approach encourages people to move beyond overly reductionist visions of international investment law as a quasi-inevitable product of state and investor interactions, or as the quasi-autonomous and teleological identification and imposition by tribunals of necessarily sensible or correct rules of state behaviour. Indeed, the chapter argues that seeing investment arbitration as political system allows people to bring out elements of its workings with greater clarity. Altogether, this helps people get a better sense of some of the key dynamics of investment arbitration.

scholarly journals International Investment Arbitration in Laos: Large Issues for a Small State

2017 ◽  
Vol 18 (5-6) ◽  
pp. 1001-1024
Author(s):  
Romesh Weeramantry ◽  
Mahdev Mohan
Keyword(s):  
East Asian ◽  
Developed Countries ◽  
International Investment ◽  
Least Developed Countries ◽  
Small State ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Agreements

Abstract Laos is no stranger to international investment arbitration. Despite its status as one of Southeast Asia’s least developed countries, it has had an Investment Law for more than two decades and is also a party to several bilateral and Association of South East Asian Nations (ASEAN)-related investment agreements. More recently, two investment treaty claims have been made against it, one of which has given rise to an award challenge that went all the way to Singapore’s highest court. This article will examine the history, evolution and current iteration of Laos’ relationship with international investment law and focus on the two investment treaty claims instituted against Laos. The article concludes with an appraisal of Laos’ need to maintain its investment treaty programme, despite the difficulties that may have arisen as a result of it being a respondent in investment treaty arbitrations.

scholarly journals Control, Capacity, and Legitimacy in Investment Treaty Arbitration

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 261-265
Author(s):  
Jeremy K. Sharpe
Keyword(s):  
International Investment ◽  
Law Reform ◽  
Institutional Choice ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Trade Offs ◽  
Investment Law ◽  
States Experience ◽  
Investment Treaty Arbitration

Arbitration has long been the default mechanism for resolving international investment disputes. The traditional consensus favoring arbitration, however, has now given way, and reform proposals abound. The articles by Sergio Puig and Gregory Shaffer, on institutional choice and investment law reform, and by Anthea Roberts, on incremental, systemic, and paradigmatic reform of investor-state arbitration, helpfully situate the current controversies, debates, and reform options for states. Both articles reveal just how far and fast the debate has shifted in recent years. They also confirm states’ desire to exercise greater control over the regime for resolving international investment disputes. Many states continue to struggle to fully comply with their investment treaty obligations, to efficiently defend against investor claims, and to properly keep abreast of and shape developments in international investment law. Puig and Shaffer provide a useful framework for comparatively assessing possible institutional alternatives in light of their relative trade-offs. But any reform recommendations should draw lessons from states’ experience with the existing regime, including states’ significant problems of capacity. The merits of any reform proposals, therefore, should be measured in part by their ability to improve states’ capacity to cope with the existing investment protection regime and rapidly changing developments.

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