Human rights law in international investment arbitration

Abstract

Parts I-III of this paper give an overview of references to human rights – mainly at the initiative of host states and non-governmental third parties, but increasingly also by complainants and judges on their own initiative – in international investment disputes and investor-state arbitral awards and the responses by investment tribunals to such human rights arguments. They discuss the problems of ‘legal fragmentation’ of international investment law and human rights law, the need for judicial balancing of state-centered ‘principles of justice’ (like state responsibility) and person-oriented principles of justice (such as human rights and ‘proportionality balancing’) in trade and investment disputes, and related problems of legal methodology. Part IV concludes with a brief discussion of the increasing impact of the human rights obligations of all UN member states on investment disputes in other international courts and in private commercial arbitration, for instance due to the UN Guiding Principles on Business and Human Rights and their approval and increasing incorporation by thousands of transnational corporations and non-governmental organizations (like the International Federation of Football Associations) into their commercial contract practices.