Fairness as Balance: Investor Obligations and Investment Treaty Reform

Abstract

The normative asymmetry between the rights and obligations of investors and host states under investment treaties has been a key reason for the treaties’ common characterization as “unbalanced”. While initially a description of a justified treaty design, imbalance has since become a central component of the legitimacy challenges to the investment treaty regime: a normative demand of the treaties’ realignment. Identifying the imbalance critiques of investment treaties as fairness-based critiques concerning the distributive implications of investment treaties, the article considers to what extent including provisions on investor conduct in investment treaties may address the concerns about potential unfairness in the allocation of rights and obligations under these treaties. In particular, the article argues that understanding the imbalance critiques as concerns of distributive justice enables the assessment ofinvestment treaty design innovations and the alternative ways in which these instruments could be structured to produce different distributive outcomes.