Abstract
This symposium focuses on the fact that investors enjoy a suite of rights and privileges without corresponding responsibilities in international investment law. Is there a more promising future on the horizon for lawyers and advocates dissatisfied with the perceived imbalance between the rights conferred and the duties assigned to transnational corporations in today’s interconnected world? This symposium looks at the possibilities and limits that currently exist under the investor-state dispute settlement (ISDS) regime in its controversial yet changing context.
Highlights
TO THE SYMPOSIUM ON INVESTOR RESPONSIBILITY: THE FRONTIER IN INTERNATIONAL INVESTMENT LAWJames Gathii* and Sergio Puig**This symposium focuses on the fact that investors enjoy a suite of rights and privileges without corresponding responsibilities in international investment law
The international investment regime is designed to redress the mistreatment of foreign investors, not foreign investor wrongdoing
When states have tried to use arbitration to challenge the misconduct of foreign investors within host states, investor-state arbitration tribunals have ignored these claims or have failed to find legal bases for investor responsibility
Summary
This symposium focuses on the fact that investors enjoy a suite of rights and privileges without corresponding responsibilities in international investment law. The symposium is timely, and it may serve to inspire ideas for the incremental, systemic, or paradigmatic reforms of international investment law aimed, in part, at averting investor over-protection.[2] Reformists advocate the replacement of older investment treaties with newer ones containing numerous carve-outs for host state regulation, the replacement of confidential proceedings between disputing parties with transparent ones that give a voice to interested nondisputing parties, and the replacement of ad hoc arbitration with standing investment courts. International investment law’s propensity toward overprotection of businesses stems from its preoccupation with state responsibility—not the (mis)behavior of powerful actors more generally This can result in investors benefitting from the protection of international law against host state mistreatment, while largely evading responsibility for their misconduct towards the host state or local communities therein, including vulnerable and/or marginalized groups such as indigenous peoples. ** University of Arizona College of Law. 1 Sergio Puig & Gregory Shaffer, Imperfect Alternatives: Institutional Choice and the Reform of Investment Law, 112 AJIL 361 (2018). 2 Anthea Roberts, Incremental, Systemic, and Paradigmatic Reform of Investor-State Arbitration, 112 AJIL 410 (2018). 3 Lorna McGregor, Activating the Third Pillar of the UNGPs on Access to an Effective Remedy, EJIL: TALK! (Nov. 23, 2018)
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