Counterclaims Based on International Human Rights Obligations of Investors in International Investment Arbitration

Patrick Abel

doi:10.1163/23527072-00101003

Abstract

The 2016 icsid award in Urbaser v. Argentina affirmed for the first time the possibility of a counterclaim in investment arbitration based on an international investor obligation under the human right to water. But to denounce a break-through and fundamental change in both international investment and human rights law would be premature. This article deconstructs the award’s reasoning and sheds light on its doctrinal fallacies, in particular the award’s unclear construction of the integration of a human rights obligation into investment arbitration and its misled argumentation on the existence of an international human rights obligation of private actors under the human right to water. Concluding that the award cannot be sustained under the current state of international law, the article then reflects on the potential of the award’s conception of human rights counterclaims for the future of international investment law and international human rights law.

Highlights

The 2016 icsid award in Urbaser v
4.2.3 Interim Conclusion In sum, faced with the challenge of adjudicating on the integration of a human rights obligation into the arbitration proceedings as the basis for a counterclaim, the Tribunal resorted to international human rights law as a source ‘external’ to the Spain-Argentina bit
Argentina affirmed the possibility of a human rights counterclaim by the host State against the investor

Summary

Introduction

The 2016 icsid award in Urbaser v. Investment tribunals in the past have in principle accepted the possibility of an investor claim against the host State based on international human rights law under an investment treaty or contract, provided that the jurisdictional clause is broad enough.[56] There is no reason why the same should, not be true under the same conditions for basing a counterclaim on an external source of law like international. 4.2.3 Interim Conclusion In sum, faced with the challenge of adjudicating on the integration of a human rights obligation into the arbitration proceedings as the basis for a counterclaim, the Tribunal resorted to international human rights law as a source ‘external’ to the Spain-Argentina bit Such an integration is possible in investment arbitration.

Conflation of Legally Binding and Non-binding Human Rights Norms in the Award

A Model for International Investment Law and Investment Arbitration?

A Model for International Human Rights Law and Its International Enforcement?

Conclusion