Fragmentation and inconsistency in international investment law

Extract

[...] The current model of investor-state arbitration under the investment law regime impacts access to justice. Implementing alternative investment protection methods without arbitration is an obvious way to address these concerns. Investment treaties should require human rights compliance. Human rights due diligence and HRIAs with transparent methodologies may be investor obligations. Investors who cannot prove human rights compliance may be excluded from treaty coverage and prevented from suing states if investor-state arbitration is included. In investment treaties with investor-state arbitration, dispute settlement reforms should address the effects on rights holders. [...]

[...] To this day, investors have submitted more than 800 known claims against states based on investment treaties. MNEs have relied on investor-state arbitration to challenge state decisions, policies, and measures adopted in pursuit of public interest objectives. These challenges have included legislation requiring plain packaging for tobacco products; regulations adopted for the protection of the environment; judicial decisions holding companies liable for harms to private individuals and communities; and measures adopted to address local opposition to investment project. The international investment regime's actual or potential impacts on access to justice for individuals and communities affected by investments have received less attention in discourse and action on reform at the global, regional, and national levels, despite being the subject of broad and ongoing public debate for several years. [...]

[...] Do you agree with this statement? Why not? Introduction More than 3,300 investment treaties make up the international investment regime. These treaties can be broken down into two categories: free trade agreements (FTAs) with investment chapters and bilateral investment treaties (BITs). In most cases, the nature of these agreements is asymmetric: they establish a variety of protections for covered investors, which are typically multinational enterprises (MNEs), which entail obligations for state parties, but they do not impose any direct human rights obligations on investors. [...]

[...] Effective, inclusive, and ongoing citizen participation and consultations should occur before critical investment treaty negotiation stages. Stronger project documentation can help affected rights holders challenge projects and aid investment disputes. Examine home state claims and efforts to create a legally binding international instrument to regulate transnational corporations and other business entities to improve human rights enforcement. Human rights law enforcement was crucial. It is unclear how much such efforts could mitigate the investment regime's negative effects on rights holders' access to justice without adequate reform. [...]

[...] Allocation of state resources The law governing international investments may persuade states to place a higher priority on the provision of protections for investors when allocating resources. It is possible for investment treaties to function in settings where power imbalances already exist, such as when investors enjoy access to and favorable attention from the government while communities are marginalized, forgotten, or even victimized. Consequently, it is particularly problematic to introduce a system in which the government believes that international law requires it to devote even more attention to the interests of investors. [...]