The Legitimate Role for Investment Law and Arbitration in Protecting Human Rights

Program

Wednesday September 4, Tøyen Hovedgård, University's Botanical Garden

Thursday September 5, Kjerka, Domus Media Vest, Karl Johans gt. 47

International investment law in general, and investor-state arbitration in particular, is primarily concerned with granting and enforcing rights to a particular class of entities – foreign investors – who are frequently multinational corporations and whose reputation regarding compliance with international human rights norms is often questioned. This has led to repeated critiques of the international investment regime as not only failing to balance investor rights against the public interests surrounding human rights protection among host state populations, but moreover claiming that investor-state arbitration is complicit in adjudicating claims by foreign investors who are themselves human rights abusers.

These critiques paint a picture of a system – whether true or not – facing serious legitimacy challenges. However, at the same time, we do see in recent years that there are examples of amendments to investment treaties as well as investor-state arbitration cases that potentially protect human rights rather than prevent their realization. Examples include cases initiated by vulnerable investors who have been subject to abuse of power, cases where tribunals examine and pass judgment on corrupt practices, cases where tribunals lend support to third parties that have suffered due to collusion between investors and public authorities, cases in which host governments have justified their actions through the protection human rights and even filed counterclaims against corporate investors, and cases where the investment in question aims at promoting human rights in the host country.

Even though there might be a long way to go, signs are emerging that human rights obligations can be addressed by investor-state arbitration tribunals and that with proper guidance, arbitrators may be capable of striking a proper balance. As reform efforts in regard to both treaty design and adjudicative mechanisms ramp up in the coming years, the time is ripe to explore how international investment law and arbitration can be more supportive in the protection of international human rights law.

Organizing Committee

Ole Kristian Fauchald, PluriCourts and LEGINVEST
Laura Létourneau-Tremblay, PluriCourts and LEGINVEST  
Daniel Behn, PluriCourts and LEGINVEST
Malcolm Langford, PluriCourts and LEGINVEST
Caroline Henckels, Monash University
Tomer Broude, Hebrew University of Jerusalem
Eric de Brabandere, Leiden University