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dc.contributor.authorKUBE, Vivian
dc.contributor.authorPETERSMANN, Ernst-Ulrich
dc.date.accessioned2017-01-17T10:00:51Z
dc.date.available2017-01-17T10:00:51Z
dc.date.issued2016
dc.identifier.citationAsian journal of WTO and international health law and policy, 2016, Vol. 11, No. 1, pp. 65-114en
dc.identifier.issn1819-5164
dc.identifier.urihttps://hdl.handle.net/1814/44789
dc.description.abstractThis paper discusses problems of legal fragmentation of international investment law and human rights law and related legal methodology questions regarding person-oriented principles of justice (such as human rights and "proportionality balancing") in contrast to the more commonly applied focus on judicial balancing of state-centered "principles of justice" (like state responsibility). The paper builds on a comprehensive survey of publicly available investor-states disputes in which human rights were invoked by the parties to dispute (investor, host state and arbitrators ex officio) or third party interveners. The assessment of these awards in Part II of this paper suggests that arbitral tribunals are more open towards human rights as due process rights and as principles ofproceduralfairness and balancing than towards integrating human rights as an authoritative legal regime consisting of legally enforceable entitlements. The only exception to this general trend remains the right to property. However, the assessment generally reveals a lack of any systematic methodology as to how to respond to human rights argumentation. Part III traces the legal reasons behind these observations by looking into the entry points for human rights and obstacles for integration as they emerge from the texts of BITs and IIAs. This part demonstrates the possibilities that already exist for arbitrators to take into account human rights, such as jurisdiction clauses, applicable law clauses, definitions of "investments", the customary rules of treaty interpretation, preambles of BITs, relevant protection standards and rules on awarding damage compensation. The conclusion suggests that the shortcomings are not an inevitable result of textual limitations, as alternative outcomes of ISDS disputes are legally possible and justifiable. In the absence of any development of a clear methodology, textual adjustment might thus not counter fragmentation. Systemic reform might be necessary to ensure transparent, coherent and balanced approaches to human rights argumentation.en
dc.language.isoenen
dc.publisherNational Taiwan University Pressen
dc.relation.ispartofAsian journal of WTO and international health law and policy
dc.relation.isversionofhttp://hdl.handle.net/1814/38985
dc.relation.isreplacedbyhttp://hdl.handle.net/1814/51325
dc.subjectHuman rightsen
dc.subjectInvestment lawen
dc.subjectInvestor-state arbitrationen
dc.subjectJudicial comityen
dc.subjectLegal methodologyen
dc.subjectPrinciples ofjusticeen
dc.subjectTreaty interpretationen
dc.titleHuman rights law in international investment arbitrationen
dc.typeArticleen
dc.identifier.volume11
dc.identifier.startpage65
dc.identifier.endpage114
eui.subscribe.skiptrue
dc.identifier.issue1
dc.description.versionPublished version of EUI LAW WP 2016/02en


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