Systemizing Human Rights Within Investment Arbitration – Vol. 28 No. 4

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Authors: Nicolette Butler* and Shavana Haythornwaite**

Published: November 2017

United States
Investment Disputes

I. Investment Arbitration and the Issue of Human Rights: A Brief Introduction

International Investment Law and International Human Rights Law are two distinct branches of public international law. Though they are distinct in nature, the two fields are very much intertwined; a number of human rights issues might be brought to the forefront during the course of a foreign investment relationship between the foreign investor and the investment host state. For example, the foreign investor may be entitled to human rights protections from the actions of the host state, or conversely, the foreign investor might violate human rights within the territory of the host state during the course of the investment. Consequently, issues pertaining to corporate social responsibility and human rights are increasingly important within investor-State arbitration cases, either within the claims themselves or in the investment treaty awards. If a dispute does arise, the investor may have a number of options when it comes to dispute resolution. Of course, the investor may be able to utilize the national courts of the investment host state in order to seek redress. However, from the investor’s point of view, this may not be desirable due to concerns regarding potential impartiality on the part of the host state judiciary. Additionally, on a basic level, a foreign investor will always be at a disadvantage in a court that is not within his or her home state, due to potential language and cultural barriers. Thus, settlement of an investment dispute through the national courts of the investment host state may not be desirable from the investor’s perspective.

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*Lecturer in Law at the University of Manchester.
**Lecturer in Law at the University of Manchester. She has also held Visiting Fellowships at The University of Cambridge and the European Univerity Institute.