When and How Allegations of Human Rights Violations can be Raised in Investor-State Arbitration

Abstract

This article examines when and how allegations of human rights violations committed by an investor can be raised before an arbitral tribunal in the context of investor-State arbitration. We first briefly examine the controversial question of corporations’ human rights obligations under international law. We then analyse three typical features, found in the vast majority of BITs, which clearly bars host States from initiating on their own arbitration proceedings to claim reparation for human rights violations committed by a foreign investor in their territory. We next analyze the limited circumstances under which the host State can raise allegations of human rights violations when acting as respondent in arbitration proceedings. Finally, we will look at circumstances where the home State of an investor may decide to intervene with the tribunal to raise allegations of human rights violations.