The chapter focuses on the interaction between foreign direct investment (FDI) and human rights as one of the most contentious issues surrounding the contemporary regulation of FDI. Human rights issues interact in various ways with investment law. Therefore, the chapter briefly discusses the question whether human rights obligations directly impose obligations on foreign investors as a matter of international law. Moreover, it addresses the limited scope of the jurisdiction of investment tribunals, the effect of the insertion, in investment treaties of clauses concerning the obligations of foreign investors and the effect of ‘legality’ requirements in investment treaties. Furthermore, the ‘conflict’ between human rights obligations and investment treaty obligations and the applicable rules on treaty conflict are examined. It assesses how investment tribunals have dealt with human rights as part of the applicable law in investments, and human rights invoked as a defence for a breach of an investment treaty obligation.
Eric De Brabandere
Over the past decades, it has become evident that international investment law interacts in various ways with human rights, beyond the mere common roots of both sets of norms. While foreign investment can be generally beneficial to the respect for and the progressive realization of social rights, the interlinkage between social rights and foreign investment has more often than not been discussed in the context of the conflicts between a state’s obligation to ensure respect of social rights, and the protection of foreign investment. In principle both sets of norms can coexist without any normative friction. But the lack of automatic conflict between these two sets of norms does not imply that there cannot be, in casu, a conflict between the host state’s human rights obligations and those in relation to investment treaties. This chapter looks broadly at how interactions and conflicts between social rights and foreign investment and the international protection thereof can occur.
Eric De Brabandere
Eric De Brabandere and Maryse Hazelzet
To date, corporations have had no direct human rights obligations under international law. Nonetheless, the increasing role of non-state actors in the international society and, as a consequence, the increasing impact of non-state actors on human rights can no longer be ignored. This chapter explores the factual and normative dimensions of international corporate responsibility for human rights violations. It also analyses existing mechanisms and new proposals for enhancing the accountability of transnational corporations, through the use of ‘soft’ instruments, domestic mechanisms or through self-regulatory mechanisms.
Eric De Brabandere and David Holloway
The sanctions enacted by the European Union (EU), the United States of America (US) and various other States in 2014 against several Russian individuals have sparked a debate amongst scholars and practitioners concerning the arbitration of disputes involving Russian parties or transactions targeted by the sanctions. The issues arising, however, are not completely novel. The impact of sanctions on international arbitration has been studied and discussed for many years, notably in relation to the sanctions against Iraq, Libya and Iran. This chapter focuses on the impact of sanctions on international arbitration which can be provided for in contracts which have been targeted by the sanctions, or in international investment agreements. On a general jurisprudential level, economic sanctions highlight various complexities within the arbitral process, viz. the operation and interaction of various laws and legal systems (the lex arbitri and law governing the arbitration agreement, the substantive law of the contract and the law of the enforcing jurisdiction as well as overriding international law principles). These various laws may be in play throughout the process, to be applied not only by tribunals themselves during the course of proceedings, but also potentially by courts deciding or reviewing questions of jurisdiction and public policy (whether at the seat or in the enforcing jurisdiction). On a more practical level the increase in relatively recent sanctions regimes has led to growing discussion about the implications of these regimes for arbitrators and arbitral institutions. Keywords international arbitration, arbitrability, lex arbitri, jurisdiction, responsibility of arbitrators and arbitration institutions, investment arbitration