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

LEGINVEST and PluriCourts, in collaboration with Monash University and the Minerva Center for Human Rights at the Hebrew University of Jerusalem, are organizing an international symposium on the legitimacy and increasingly important role for international investment law and arbitration in the protection of international human rights.

Program

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

When       
09.00-09.15                                        Welcome
Ole Kristian Fauchald (University of Oslo, PluriCourts)
09:15-10.00

Keynote
Anne van Aaken (University of Hamburg)

"The Multiple ways of Protecting Human Rights in foreign investments"

 

Session 1

Chair: Malcolm Langford (University of Oslo)
10:00-10:40      

Alessandra Arcuri (Erasmus School of Law)
On ‘Boundaries’ of International Investment Law as Mechanisms to Exclude Human Rights and Sustainable Development

Comments: Ole Kristian Fauchald (University of Oslo, PluriCourts)

10:40-11:20

Dafina Atanasova (National University of Singapore)
Conflict Clauses in Investment Treaties: Asymmetries and Notable Absences

Comment: Caroline Henckels (Monash University)

11.20-11.40 Coffee break
 

Session 2

Chair: Caroline Henckels (Monash University)
11:40-12:20

Edward Guntrip (University of Sussex)
Public and Private Perspectives on Investor-State Dispute Settlement: The Rule of Law as a Common Foundation?

Comment: David Schneiderman (University of Toronto)

12:20-13:00

Ernst-Ulrich Petersmann (European University Institute)
Legitimizing Functions of Invoking Human Rights in Investment Arbitration

Comment: Tomer Broude (Hebrew University of Jerusalem)

12:00-14:00 Lunch Break
 

Session 3

Chair: Tomer Broude (Hebrew University of Jerusalem)
14:00-14:40

Laura Létourneau Tremblay (University of Oslo, PluriCourts)
Counterclaims and Investors’ Obligations: New Paradigm?

Comment: Malcolm Langford (University of Oslo)

14:40-15:20

Jean-Michel Marcoux (McGill University)
Informal Instruments to Impose Human Rights Obligations on Foreign Investors: An Emerging Practice of Legality?

Comment: Anne van Aaken (University of Hamburg)

16:00-17:00 Guided tour at the Botanical Garden
18:00 Dinner at Fjord restaurant

 

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

When  
 

Session 4

Chair: Eric de Brabandere (Leiden University)
09:00-09:40                                                              

Martin Jarrett (University of Mannheim)
The Challenges of Prosecuting Human Rights Abuses by Investors in International Investment Law

Comment: Anil Yilmaz-Vastardis (University of Essex)

 09:40-10:20

Runar Lie (University of Oslo, PluriCourts)
Does change matter? A computational study of ISDS actors’ response to change

Comment: Daniel Behn (University of Oslo)         

 10:20-11:00

Moshe Hirsch (Hebrew University of Jerusalem) “Social Movements, Reframing Investment Relations, and Enhancing the Application of Human Rights Norms in International Investment Law

Comment: Caroline Henckels (Monash University)  

 11:00-11:20 Coffee Break
 

 Session 5

Chair: Daniel Behn (University of Oslo, PluriCourts)
11:20-12:00

Tomer Broude (Hebrew University of Jerusalem) & Caroline Henckels (Monash University)
Not all Rights are Created Equal: A Loss-Gain Frame of Investor Rights vs. Human Rights

Comment: Ernst-Ulrich Petersmann (European University Institute)

12:00-12:40

Ole Kristian Fauchald (University of Oslo, PluriCourts)
The relationship between Foreign Direct Investment, the Right to Development and the UN Sustainable Development Goals

Comment: Eric de Brabandere (Leiden University)

12:40-13:30 Lunch Break
 

Sesson 6

Chair: Ole Kristian Fauchald (University of Oslo)
13:30-14:10

Hans Morten Haugen (VID Specialized University)
Do and Should Arbitration Tribunals Apply Human Rights?

Comment: Ana-Maria Daza Vargas (University of Edinburgh)

14:10-14:50

Raymond Gao (Australian National University)
Normative Divide Revisited: Balancing Investor Protection with Human Rights in Investment Arbitration

Comment: Szilárd Gáspár-Szilágyi 

 

Closing remarks

14:50-15:30      Next Steps for the Special Issue in the Leiden Journal of International Law

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

Tags: Investment, Human Rights, Legitimacy
Published Feb. 8, 2019 7:39 AM - Last modified Sep. 3, 2019 5:39 PM