Can invocation of human rights enhance justice and social legitimacy in investment adjudication?

Abstract

Justice, the customary law rules on treaty interpretation, and the universal recognition of human rights require construing international investment law (IIL) in conformity with the human rights obligations of states rather than only in terms of economic utility and autonomy (e.g. of investors, arbitrators and states). Prioritizing foreign investments risks undermining ‘constitutional justice’ and human rights law (HRL), as emphasized by the European Court of Justice (section I). In investor-state arbitration, complainants, respondents, third parties (e.g. amici curiae) and arbitrators increasingly invoke human rights as procedural ‘due process rights’, part of the applicable law, or as relevant context for ‘systemic interpretation’ (II). Yet, just as the adoption of the proposed UN Agreement on Business and Human Rights remains contested, so remains the impact of HRL on the settlement of investment disputes limited. This contribution explains why HRL and ‘economic constitutionalism’ can increase the source- and process-based ‘normative legitimacy’ and result-oriented, internal and external ‘social legitimacy’ of economic adjudication. Reforms of IIL are necessary for protecting ‘constitutional and human rights integrity’, ‘deliberative’ and ‘constitutional democracy’ and public reason in multilevel governance of public goods (like sustainable development). HRL justifies constitutional and cosmopolitan, legal and judicial methodologies limiting neo-liberal interest group politics, President Trump’s mercantilist ‘weaponisation’ of trade and investments, and China’s totalitarian state-capitalism (III).