scholarly journals Chinese Foreign Direct Investment and Human Rights in Kenya: A Mutually-Affirming Relationship?

2021 ◽  
Vol 2 (1) ◽  
pp. 133-154
Author(s):  
Rosemary Mwanza
Keyword(s):  
Human Rights ◽  
Foreign Direct Investment ◽  
Direct Investment ◽  
International Investment ◽  
Reciprocal Relationship ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Investment Arbitration ◽  
Human Rights Norms ◽  
Chinese Foreign Direct Investment

Does the increase in Chinese foreign direct investment (FDI) inflows into Kenya portend doom for human rights in the country? The prominent narrative has been that FDI undermines human rights in host states, especially those in the developing world. This narrative is countered by claims that there exists a mutually affirming relationship between FDI and human rights. Proponents of this view posit that FDI facilitates the diffusion of human rights norms and correlates with the improved rule of law in host states. They also point to emerging human rights jurisprudence in international investment arbitration as evidence of a reciprocal relationship between FDI and human rights. In light of these arguments, this paper analyses the extent to which such a reciprocal relationship bears out between Chinese FDI and human rights in Kenya. It will be demonstrated that given the lack of a framework for human rights accountability for corporations at the international level, the restrictive treatment of human rights in international investment arbitration tribunals and weak institutional capacity in host states, a positive overlap between FDI and human rights is hardly a panacea for human rights protection in Kenya. Therefore, a synergy of legal measures and non-legal measures provide a pragmatic approach to insulate human rights from violations that may be associated with Chinese FDIs.

scholarly journals Does State Ownership Matter? Institutions' Effect on Foreign Direct Investment Revisited

2011 ◽  
Vol 13 (1) ◽  
pp. 1-31 ◽  
Author(s):  
Carl Henrik Knutsen ◽  
Asmund Rygh ◽  
Helge Hveem
Keyword(s):  
Human Rights ◽  
Foreign Direct Investment ◽  
Rule Of Law ◽  
Host Country ◽  
Direct Investment ◽  
State Ownership ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Property Rights Protection ◽  
High Level

This paper investigates whether Foreign Direct Investment (FDI) decisions are influenced by state ownership. The literature has established that host country institutions affect FDI allocation, but there is no systematic evidence how state ownership affects such relationships. However, we expect that state ownership systematically affects the relation between host country institutions and FDI. Theoretical arguments indicate that state-owned enterprises (SOEs) should invest relatively more than privately owned enterprises (POEs) in countries with poor rule of law, poor property rights protection and a high degree of corruption. However, SOEs are expected to invest relatively less than POEs in dictatorships and countries with poor human rights protection. We test these hypotheses, using a new dataset on Norwegian firms' FDI from 1998 to 2006. The empirical analysis suggests that SOEs invest relatively more than POEs in countries with high level of corruption and weak rule of law. Indeed, SOEs' FDI appears not to be reduced by such institutional risk factors. However, there is no solid evidence indicating that SOEs invest more in democracies and countries with better human rights protection.

Proportionality and Human Rights Protection in International Investment Arbitration: What’s Left Hanging in the Balance?

2020 ◽  
Vol 89 (3-4) ◽  
pp. 343-363
Author(s):  
Daria Davitti
Keyword(s):  
Human Rights ◽  
Foreign Investment ◽  
International Investment ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Competing Interests ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Protection Of Human Rights ◽  
Investment Agreements

Abstract This article focuses on the proportionality analysis carried out by international investment tribunals when the protection of foreign investment adversely impacts the protection of human rights. International investment arbitrators are increasingly called to adjudicate awards which require a ‘balancing’ between the so-called rights of investors, protected as they are by relevant international investment agreements (iia), and the rights of third parties affected by foreign investment. Such balancing often entails, at its core, a controversial juxtaposition between investment protections and human rights protections. In this article, I argue that a balancing between investors’ rights and human rights is neither possible nor desirable. This argument is crucial to demystify existing assumptions surrounding the use of balancing and proportionality in international investment arbitration as a way of successfully reconciling competing interests as well as conflicting protection obligations vested upon a host State.

Triage

2013 ◽  
Author(s):  
Emilie M. Hafner-Burton
Keyword(s):  
Human Rights ◽  
Legal Reform ◽  
International Human Rights ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Effective Implementation ◽  
The Core ◽  
International Human ◽  
Core Idea ◽  
Human Rights Norms

This chapter advocates a process called “triage” for resource allocation that requires investing more heavily in areas where the evidence indicates that human rights promotion is most likely to work. It argues that the universality of human rights norms, which are the bedrock of the international human rights legal system and the core idea of the Universal Declaration of Human Rights, is not a tenable guide for the most effective implementation of human rights norms. It explains why human rights is a matter of national interest and how assessments of leverage impact human rights. It shows how triage can help stewards in the area of international legal reform and concludes by outlining steps that could transform the process through which government stewards work to protect human rights and increase the returns on international promotion efforts for human rights protection.

scholarly journals National Wisdoms and the ASEAN Human Rights Legal Regime

2017 ◽  
Vol 1 (1) ◽  
pp. 46
Author(s):  
Heribertus Jaka Triyana
Keyword(s):  
Human Rights ◽  
Disaster Management ◽  
Disaster Response ◽  
East Asian ◽  
Asian Countries ◽  
Legal Regime ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Human Rights Norms ◽  
Human Rights Based Approach

Recently, the discourse on the relation between local wisdom and human rights shows its relevance. This article describes and critically examines the human rights norms and procedures with regards to common local wisdoms to remedy and redress human rights problems in South East Asian countries. It takes an example of redressing problem in rights to development and also focuses on the application of the ASEAN agreement on Disaster Management Response to contextualize role and influence of local wisdoms to manage and to mitigate disaster response within the ASEAN human rights protection. This writing also highlights that human rights based approach is needed in the implementation of the ASEAN human rights norms and mechanisms in accordance to local wisdoms of respective countries where disaster occurs.

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.

Where the Shadow Falls: Corruption in International Investment Arbitration

2016 ◽  
pp. 489-501
Author(s):  
Cameron A. Miles
Keyword(s):  
Foreign Direct Investment ◽  
Review Essay ◽  
Direct Investment ◽  
International Investment ◽  
International Community ◽  
Investment Arbitration ◽  
Company Limited

The international community has long been aware of the intersection between domestic corruption and foreign direct investment. As such, corruption is not infrequently (but at the same time, not frequently) a presence in international investment arbitration. Save in rare circumstances (see e.g. World Duty Free Company Limited v Republic of Kenya and Metal-Tech Ltd v Uzbekistan) it is not raised overtly – but instead exercises a tenebrous influence on proceedings that is difficult to quantify precisely. This article is a review essay of the first systematic attempt to chart this influence across every investment arbitration case in which corruption issues have been relevant, Aloysius P. Llamzon’s Corruption in International Investment Arbitration.

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