Abstract
AbstractThis article assesses different approaches currently discussed and developed in international human rights and investment law to establish investor obligations. The article begins with a general framework of analysing and comparing these approaches. Next, attempts to include direct obligations of business entities in international human rights treaties are discussed. Despite earlier indications the recent initiative to create a legally binding instrument on business and human rights will most likely not include direct obligations for business entities. Subsequently, the article assesses the development of investor obligations in new international investment treaties and through the interpretation and application of existing international investment agreements. Arguably, the former will not lead to binding obligations in the foreseeable future and the latter rests on methodologically questionable grounds. Consequently, the article suggests that the way forward will require domestic legislation in host and home states to establish investor obligations which can be taken into account when interpreting existing investment treaty clauses requiring the investor to adhere to domestic law. This would reflect recent trends both in investment law reforms as well as the business and human rights movement.
Highlights
The international law protecting foreign investment contains substantive and procedural rights for investors, but hardly any obligations
Investor obligations could contribute to the rebalancing of international investment law and to the implementation of the United Nations Guiding Principles (UNGPs)
After briefly contextualizing the question about investor obligations in the wider debate on investment law and human rights, the article assesses the development of investor obligations in new international investment treaties and through the interpretation and application of existing international investment agreements
Summary
The international law protecting foreign investment contains substantive and procedural rights for investors, but hardly any obligations. This one-sidedness of a legal regime which only entrusts rights, but imposes no duties on powerful economic actors, in particular multinational enterprises, contributes to its ongoing legitimacy crisis[2] prompting calls for a rebalancing of international investment law.[3] Such calls have been voiced by academia and civil society, but increasingly by the investment law community, including investment tribunals as the above-mentioned quote of the recent decision of the tribunal in the matter Aven v Costa Rica aptly demonstrates.[4].
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