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Kaitlin Y. Cordes, Sam Szoke-Burke and Tulika Bansal

This chapter explores a yet-untested approach for collaborative human rights impact assessment (HRIA) - defined as a joint process undertaken by project-affected people and a company, potentially with the host government or other stakeholders, to investigate, measure and respond to a business project’s human rights impacts. The approach emphasizes deep collaboration between stakeholders. This differs from company-commissioned HRIAs, which usually do not create space for project-affected people to jointly define and implement the process. This chapter explores why stakeholders might wish to undertake a collaborative HRIA, as well as factors affecting the appropriateness of the approach in specific contexts. It also provides an overview of the collaborative approach to HRIA, including discussion of participants, key steps, structure and governance, methodology, dispute resolution and funding. Finally, the chapter reflects on key challenges and opportunities relating to the local context, characteristics of the project and the people affected, and issues related to time and timing.

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Jesse Coleman, Kaitlin Y. Cordes and Lise Johnson

In its current form, the international investment treaty regime may stymie the business and human rights agenda in various ways. The regime may incentivize governments to favour the protection of investors over the realization of human rights. Investment treaty standards enforced through investor–state arbitration risk adversely affecting access to justice for project-affected rights holders. More broadly, the regime contributes to a system of global economic governance that elevates and rewards investors’ actions and expectations, irrespective of whether they have adhered to their responsibilities to respect human rights. Without comprehensive reform, investment treaties and investor–state arbitration will continue to interfere with the realization of human rights and broader public interest objectives. This chapter provides an overview of the interaction between international human rights law and the investment treaty regime. It highlights the challenges that arise from tension between human rights and investment norms, including the impact of the investment regime on the ability of host states to regulate and on access to justice for investment-affected rights holders. The chapter also explores whether and how human rights issues have been addressed by the investment regime to date, highlighting developments in treaty drafting practice and responses to human rights argumentation by investment tribunals. It notes the shortcomings of current approaches, and concludes by briefly setting out some options for reform.