What's Human Rights Got To Do With It? An Empirical Analysis of Human Rights References in Investment Arbitration

Abstract

This article provides a framework for systematically analyzing the practice, function, and consequences of human rights references in investment arbitration. In recent years, investment arbitration witnessed an enormous increase of references to external sources. References to human rights are especially interesting as they defy the alleged inherent conflict of investment and human rights, as well as the presumed fragmentation of international law. By applying both quantitative and qualitative approaches, I analyze how and why human rights references are employed in investor-state arbitration and, ultimately, whether they are able to remedy the legitimacy crisis of investment arbitration.The empirical analysis is based on 46 awards, which include explicit references to human rights instruments. In the first part, this article examines which human rights instruments are referenced in investment arbitration and how the disputing parties as well as the tribunal engage in human rights referencing. In the second step, the article identifies two strategic functions of referencing human rights: guidance in the determination of substantive provisions and argumentative practice. This article further argues that, from a comparative law perspective, references may help to overcome the indetermination of investment treaties, provide for the balancing of investment and non-investment concerns, and ensure cross-regime consistency. In the third step, this article elaborates on whether those presumed benefits of referencing human rights can be confirmed on the basis of empirical results. It remains to be seen whether the ‘pick and choose’ approach of human rights references is capable of uncovering this legitimating potential.

Beyond Fragmentation

“…An initial 2018 study by Steininger, for example, found that approximately 9 percent of the concluded investment arbitration cases contained a reference to a human rights instrument (be it international, regional, or local). 77 A similar observation could be made on crossreferences between investment arbitration cases and WTO Appellate Body cases. 78 These are recent and interesting developments that suggest that cross-fertilization is both substantial and important in international economic law, and ripe for further study.…”

Critique of digital constitutionalism: Deconstruction and reconstruction from a societal perspective

“…27 However, its concrete operation is determined by standards of legitimacy oriented to the protection of investment capitalthat is, to the profit accumulation imperative. 28 In this constellation, effective constitutionalization may occur only if the norms emerging within and between such functional systems constitute and constrain the communication processes that, especially following globalization, have been partially 'freed' from the constraints of state-centred politics. Societal constitutionalism argues that at the level of world society, with no authoritative third instance, such a result can only be reached if sufficient external pressures are exercisedfor example, political demands over economic processes and the other way aroundand their internal structures are open to such external demands.…”

Environmental Protection Provisions in International Investment Agreements: Global Trends and Chinese Practices

“…In general, EHR clauses in IIAs protect not only first-generation human rights (essentially dealing with civil and political rights) and second-generation human rights (which sets out the protection of economic, social, and cultural rights based on first-generation human rights), but also third-generation human rights, combining collective human rights with the classic concept of human rights, as the jurisprudential basis for protecting certain human rights (including the right to the environment) in host states, in the context of IIAs [31,32]. The existing works on the content of human rights provisions encompass the environment, sustainable development, property rights, and labor rights, while such types of clauses include provisions on CSR, exceptions to indirect expropriation, investors' human rights obligations in accordance with international standards, fair trial, and general exceptions [33][34][35].…”