Unit:
Κατεύθυνση Νομικές Διεθνείς Σπουδές με κατευθύνσεις: α) Δημόσιο Διεθνές Δίκαιο, β) Ευρωπαϊκό Δίκαιο,γ) Ιδιωτικό Διεθνές και Συγκριτικό ΔίκαιοLibrary of the School of Law
Author:
Agrafioti-Chatzigianni Vasiliki-Alkistis
Supervisors info:
Αναστάσιος Γουργουρίνης, Λέκτορας, Νομική, Τμήμα Διεθνών Σπουδών, ΕΚΠΑ
Μαρία Γαβουνέλη, Επίκουρη καθηγήτρια, Νομική, Τμήμα Διεθνών Σπουδών, ΕΚΠΑ
Γεώργιος Κυριακόπουλος, Λέκτορας, Νομική, Τμήμα Διεθνών Σπουδών, ΕΚΠΑ
Original Title:
Human rights arguments in investor-state arbitration
Translated title:
Human rights arguments in investor-state arbitration
Summary:
The significant role of international human rights law (IHRL) in investor-state arbitration becomes increasingly manifest for both the investors and the host States. Developments under IHRL not only can inform the indeterminate standards and rights provided under an IIA, but also fill a gap in the international investment regime. On the other hand, the incorporation of explicit human rights and environmental provisions into the IIAs, and the drafting of IIAs to permit closely related host States’ counterclaims would reinforce host State defenses, rebalance investment law and promote equity of weapons in investor-state arbitration. The present study aims to investigate, though a case law analysis approach, the course of development of human rights arguments (HRAs) in investor-state arbitration, over the last decade, looking into the most recent cases and highlighting the qualitative differences in human rights argumentation provided by the parties and in tribunals’ relevant analysis, compared to earlier cases. It aims at a critical appraisal of both parties’ HRAs, indicating, in parallel, the significance of amicus curiae submissions; it explores the different issues that evolve and provides further considerations. Initially, it presents an overview of the theoretical framework within which human rights issues become relevant in investor-state arbitration. Then, considering human rights as an investor’s sword, the classification of the investors’ HRAs is based on the different purposes their invocation serve (investors claiming their ‘human’ rights violation as independent human rights claims or in support of treaty violations, environmental arguments in support of investors’ claims, invocation of the right to a nationality to establish jurisdiction ratione personae). Subsequently, the paper focuses on HRAs raised by the host States and the amici in support of the host State defense, presenting both cases where the host States have invoked IHRL and cases where the host States have relied primarily in domestic human rights and environmental provisions. Finally, this study aims to give answers, inter alia, to the following: Which are the principal avenues used for inserting HRAs in investor-state arbitration? Is there any evidence to suggest a change in the frequency and quality of HRAs? What makes a strong human rights argument?
Main subject category:
Law and Legislation
Other subject categories:
Public international law
European law
Comparative law
Keywords:
Investor-state arbitration, international investment law, international human rights law, human rights arguments, environmental arguments, investors’ claims, host States’ defenses, amicus curiae submissions, case-studies, principle of systemic integration, human rights provisions into the IIA, applicable law, substantial and procedural rights, right to a nationality, right to a fair trial, right to an effective remedy, environmental rights, right to water, local communities’ rights
Number of references:
204
