Human Rights in International Investment Law and Arbitration
Oxford University Press, 2009
This book offers a systematic analysis of the interaction between international investment law, investment arbitration and human rights, including the role of national and international courts, investor-state arbitral tribunals and alternative jurisdictions, the risks of legal and jurisdictional fragmentation, the human rights dimensions of investment law and arbitration, and the relationships of substantive and procedural principles of justice to international investment law.
Part I summarizes the main conclusions of the 24 chapters and places them into the broader context of the principles of justice, global administrative law and multilevel constitutionalism that may be relevant for the administration of justice in international economic law and investor-state arbitration.
Part II includes contributions clarifying the constitutional dimensions of transnational investment disputes and investor-state arbitration, as reflected in the increasing number of arbitral awards and amicus curiae submissions addressing human rights concerns.
Part III addresses the need for principle-oriented ordering and the normative congruence of diverse national, regional and worldwide legal regimes, focusing on the pertinent dispute settlement practices and legal interpretation methods of regional economic courts and human rights courts, which increasingly interpret international economic law with due regard to human rights obligations of the governments concerned.
Part IV includes 12 case studies on the potential human rights dimensions of specific protection standards (e.g. fair and equitable treatment, non-discrimination), applicable law (e.g. national and international human rights law, rules on corporate social accountability), procedural law issues (e.g. amicus curiae submissions) and specific fundamental rights (e.g. the protection of human health, access to water, and protection of the environment).
These case studies discuss not only the still limited examples of human rights discourse in investor-state arbitral awards; they also probe the potential legal relevance of investor-state arbitration for the judicial recognition, interpretation and balancing of primary rules, such as of investment law and human rights law, in the light of the principles of justice as defined by national and international law.
Table of Contents
I. Introduction and Summary of the Book
1. Introduction and Summary: 'Administration of Justice' in International Investment Law and Adjudication? (Ernst-Ulrich Petersmann)
II. Is there a Role for Human Rights in Investor-State Arbitration and International Economic Adjudication?
2. Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law (Pierre-Marie Dupuy)
3. Access to Justice, Denial of Justice, and International Investment Law (Francesco Francioni)
4. Human Rights and International Investment Arbitration (Clara Reiner and Christoph Schreuer)
5. Investment Tribunals and Human Rights: Divergent Paths (Moshe Hirsch)
6. Limits of Commercial Investor-State Arbitration: The Need for Appellate Review (Jacques Werner)
7. Transnational Investment Arbitration: From Delegation to Constitutionalization? (Alec Stone Sweet and Florian Griesel)
8. Constitutional Theories of International Economic Adjudication and Investor-State Arbitration (Ernst-Ulrich Petersmann)
III. Judicial 'Balancing' of Economic Law and Human Rights in Regional Courts
9. Balancing of Economic Law and Human Rights by the European Court of Justice (Bruno De Witte)
10. Economic and Non-Economic Values in the Case Law of the European Court of Human Rights (Pasquale De Sena)
11. Is the European Court of Human Rights an Alternative to Investor-State Arbitration? (Ursula Kriebaum)
12. Balancing of Human Rights and Investment Law in the Inter-American System of Human Rights (Pedro Nikken)
IV. Case Studies on Protection Standards and Specific Human Rights in Investor-State Arbitration
13. Balancing Property Rights and Human Rights in Expropriation (Jeff Waincymer)
14. The Fair and Equitable Treatment Standard and Human Rights Norms (Ioana Knoll-Tudor)
15. Non-Discriminatory Treatment in Investment Disputes (Federico Ortino)
16. Implementing Human Rights in the NAFTA Regime - The Potential of a Pending Case: Glamis Corp v USA (Julien Cantegreil)
17. Human Rights Arguments in Amicus Curiae Submissions: Promoting Social Justice? (James Harrison)
18. 'Proportional' by What Measure(s)? Balancing Investor Interests and Human Rights by Way of Applying the Proportionality Principle in Investor-State Arbitration (Jasper Krommendijk and John Morijn)
19. Reconciling Public Health and Investor Rights: The Case of Tobacco (Valentina Sara Vadi)
20. The Human Right to Water Versus Investor Rights: Double-Dilemma of Pseudo-Conflict? (Pierre Thielbörger)
21. Human Rights Dimensions of Corporate Environment Accountability (Elisa Morgera)
22. Environmental Rights, Sustainable Development, and Investor-State Case Law: A Critical Appraisal (Riccardo Pavoni)
23. The Relevance of Non-Investment Treaty Obligations in Assessing Compensation (Lahra Liberti)
24. EU Free Trade Agreements: An Alternative Model for Addressing Human Rights in Foreign Investment Regulation and Dispute Settlement? (Angelos Dimopoulos)