Human Rights in International Investment Law and Arbitration

Edited by Pierre-Marie Dupuy, Ernst-Ulrich Petersmann, and Francesco Francioni

International Economic Law Series

Comprehensive and thought-provoking discussion of the role of human rights in international investment law, both before investment tribunals and regional courts
Features 12 case studies exploring human rights and specific protection standards, such as sustainable development and corporate accountability
Contributions from highly respected experts from the fields of human rights and international investment law

Human Rights in International Investment Law and Arbitration

Edited by Pierre-Marie Dupuy, Ernst-Ulrich Petersmann, and Francesco Francioni

International Economic Law Series

Description

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 book 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 twelve 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.

Human Rights in International Investment Law and Arbitration

Edited by Pierre-Marie Dupuy, Ernst-Ulrich Petersmann, and Francesco Francioni

International Economic Law Series

1. I INTRODUCTION AND SUMMARY OF THE BOOK
Introduction and Summary: 'Administration of Justice' in International Investment Law and Adjudication?, Prof. E.U.Petersmann
II IS THERE A ROLE FOR HUMAN RIGHTS IN INVESTOR-STATE ARBITRATION AND INTERNATIONAL ECONOMIC ADJUDICATION?
2. Human Rights and International Investment Law: A Case for Fragmentation or Unity of Public International Law?, Prof. P.M. Dupuy
3. Access to Justice, Denial of Justice and International Investment Law, Prof. F. Francioni
4. Human Rights and International Investment Arbitration, Prof. C. Schreuer and C. Reiner
5. Investment Tribunals and Human Rights: Divergent Paths, Prof. M. Hirsch
6. Limits of Commercial Investor-State Arbitration: Need for Appellate Review, J.Werner
7. Transnational Investment Arbitration: From Delegation to Constitutionalization?, Prof. A. Stone Sweet and Florian Grisel
8. Constitutional Theories of International Economic Adjudication and Investor-State Arbitration, Prof. E.-U. Petersmann
III JUDICIAL 'BALANCING' OF ECONOMIC LAW AND HUMAN RIGHTS IN REGIONAL COURTS
9. Balancing of Economic Law and Human Rights in the European Court of Justice, Prof. B. de Witte
10. Economic and Non-Economic Values in the Case Law of the European Court of Human Rights, Prof. P. de Sena
11. Is the European Court of Human Rights an Alternative to Investor-State Arbitration?, Prof. U. Kriebaum
12. Balancing of Human Rights and Investment Law in the Inter-American System of Human Rights, Prof. P. Nikken
IV CASE STUDIES ON PROTECTION STANDARDS AND SPECIFIC HUMAN RIGHTS IN INVESTOR-STATE ARBITRATION
13. Balancing Property Rights and Human Rights in Expropriation, Prof. J. Waincymer
14. Fair and Equitable Treatment in Investment Disputes under ICSID, Dr. I. Tudor-Knoll
15. Non-Discriminatory Treatment in Investment Disputes under ICSID, Dr. F. Ortino
16. Impact of Human Rights on the Applicable Law in NAFTA Investment Disputes?, J. Cantegreil
17. Human Rights Arguments in Amicus Curiae Submissions: Promoting Social Justice?, Dr. 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, J.Krommendijk and Dr. John Morijn
19. Reconciling the Human Rights to Health with Investor's Rights: The Case of Tobacco, Dr. V. Vadi
20. The Human Rights to Water vs Investor Rights, P. Thielbörger
21. Human Rights Dimensions of Corporate Environment Accountability, Dr. E. Morgera
22. Environmental Rights, Sustainable Development and Investor Rights, Prof. R. Pavoni
23. The Relevance of Non-Investment Treaty Obligations in Assessing Compensation, Dr. L. Liberti
24. EU Free Trade Agreements: An Alternative Model for Addressing Human Rights in Foreign Investment Regulation and Dispute Settlement?, A. Dimopoulos

Human Rights in International Investment Law and Arbitration

Edited by Pierre-Marie Dupuy, Ernst-Ulrich Petersmann, and Francesco Francioni

International Economic Law Series

Author Information

Pierre-Marie Dupuy is Professor of public international law at the Graduate Institute of International and Development Studies in Geneva. He is on leave from the Université de Paris II (Panthéon-Assas) and was Professor at the European University Institute in Florence from 2000 to September 2008. Professor Dupuy has an extensive experience in the field of international dispute settlement and international arbitration including in the framework of ICSID and UNCITRAL.

Francesco Francioni holds a doctorate in law from the University of Florence and an LL.M from Harvard University. Currently, he holds the chair of international law and human rights at the European University Institute and is visiting professor at the University of Texas. Other visiting appointments include the University of Oxford and Cornell Law School. He has been a delegate of the Italian government in many international negotiations especially in the field of environmental protection and cultural heritage.

Prof. Dr. Ernst-Ulrich Petersmann holds the chair for international and European law at the European University Institute and was previously professor at the University of Geneva and its Graduate Institute for International Studies. He has practiced international economic law for more than 30 years as legal advisor in GATT and the WTO, legal advisor, member or chairman of numerous GATT and WTO dispute settlement panels, and German representative in numerous European and international organizations. His publications include 25 books and more than 200 articles and book contributions.

Contributors:

J. Cantegreil, Collège de France
Prof. P. de Sena, University of Naples
Prof. B. de Witte, European University Institute, Florence
Angelos Dimopoulos, European University Institute, Florence
Prof. P.M. Dupuy, Graduate Institute of International and Development Studies, Geneva
Prof. F. Francioni, European University Institute, Florence
F. Grisel, Institut d'Etudes Politiques de Paris
Dr. James Harrison, University of Warwick
Prof. M. Hirsch, Hebrew University of Jerusalem
Prof. U. Kriebaum, University of Vienna
J. Krommendijk, University of Groningen Law School
Dr. L. Liberti, Directorate for Financial and Enterprise Affairs, OECD
Dr. E. Morgera, United Nations Food and Agriculture Organization
Dr. John Morijn, European University Institute, Florence
Prof. P. Nikken, Universidad Central de Venezuela
Dr. F. Ortino, King's College London
Prof. R. Pavoni, University of Siena
Prof. E.U.Petersmann, European University Institute, Florence
C. Reiner, University of Vienna
Prof. C. Schreuer, University of Vienna
Prof. A. Stone Sweet, Yale Law School
P. Thielbörger, European University Institute, Florence
Dr. I. Tudor-Knoll, Gide Loyrette Nouel, Warsaw
Dr. V. Vadi, European University Institute, Florence
Prof. J. Waincymer, Monash University
J. Werner, Geneva Global Arbitration Forum