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International Investment and Human Rights: Arbitration Conflicts, Challenges, and Solutions
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Law, Department of Law.
2019 (English)Independent thesis Advanced level (degree of Master (One Year)), 10 credits / 15 HE creditsStudent thesis
Abstract [en]

The last decades have witnessed the growth in International Investment Arbitration (IIArb) in parallel with Foreign Direct Investment (FDI). Some disputes between States and foreign investors occurred, some of which are not purely related to monetary aspects but also to Human Rights, such as the right of access to water and health. Then, disputes become more complex and controversial. Looking at the legal space, public international law includes the legal regimes that need to be considered in the dispute namely, International Investment Law (IIL) and International Human Rights Law (IHRL). However, it is up to the arbitral tribunals to decide on whether to consider IHRL in the decision process. If they do, the question turns to whether they consider the two law regimes to be intersecting or independent. This thesis tackles the area of intersection between IIL and IHRL within the IIArb context. Then it naturally moves to checking the divisions and diversity in this public international law space. We investigate the research question on whether there should be unification of fragmentation of public international law. We argue the proposal of defragmenting this space in a way that does not view the two laws as independent regimes. The defragmentation revisits this issue and reorganizes the legal space into diverse legal regimes (IIL and IHRL) that interface in some specific areas, especially when Human Rights are relevant. We also check within this intersection when an interaction of the legal instruments of each law occurs. To be practical, we try to find answers in case-law. The interesting observation is that there is a trend, where States request reference to IHRL in their defenses against investors’ claims, but tribunals were favoring IIL over IHRL. Even when IHRL was considered by arbitrators as a relevant regime, the priority was to decide based on the IIL (BIT). We analyze the available case-law procedures and try to investigate ways to make the understanding of defragmentation better to seek a balance. Case-law shows that the conflict becomes more complex when issues of Intellectual Property (IP) are relevant. We then propose a model, where the intersection between IIL, IHRL and IP-law is considered to speed up the processes and ease understanding. One of the results of the thesis is a new division that helps in dealing with this conflict namely, the division of ‘non-intellectual property-rights’ as the complementary subset for IP Rights (IPR) in the space of property rights. We analyze how this division would contribute to filling the gap of understanding defragmentation. Other results are the two models of intersection of the laws in the defragmentation plane. The thesis also studies how to seek a balance by reviewing previous work, and it adopts three partial solutions: the principle of proportionality, the exclusive clauses, and the doctrine of Police Powers. We add to the first one an idea of translating the parameter of proportion into a formula for ease of use and speed. We also propose to have ready-templates for exclusive clauses that aid the tribunals, States and investors. We revisit Corporate Social Responsibility for the sake of not leaving investors not responsible for Human Rights obligations. An interesting result is a set of recommendations, where we argue the need to have multi-disciplinary programs to aid in the growing complexity of this diverse field that needs people, who have thorough knowledge in IIL, IHRL, and other fields.

Place, publisher, year, edition, pages
2019. , p. 49
Keywords [en]
Law, International, Investment, Treaty, Arbitration, Human Rights
National Category
Law
Identifiers
URN: urn:nbn:se:uu:diva-384835OAI: oai:DiVA.org:uu-384835DiVA, id: diva2:1321762
Educational program
Master Programme in Investment Treaty Arbitration
Presentation
2019-05-23, 4:128 Munken, Uppsala, 10:35 (English)
Supervisors
Examiners
Available from: 2019-07-08 Created: 2019-06-10 Last updated: 2019-07-08Bibliographically approved

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CiteExportLink to record
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