International investment agreements and mega-regionals

Abstract

This chapter examines how investment law interacts with the human right to safe drinking water and sanitation in IIAs, comprising both bilateral investment treaties (BITs) as well as preferential trade agreements (PTAs) with investment provisions. This analysis includes recently negotiated mega- regional agreements such as the Comprehensive Trade and Economic Agreement between Canada and the European Union (CETA) and the Comprehensive and Progressive Agreement for Trans- Pacifi c Partnership (CPTPP). The first section studies in what way, if any, investment protection standards as included in IIAs affect the right to water. The second part examines whether foreign investor’s legitimate expectations are affected by a host state’s measure to regulate the supply and maintenance of water on public policy objectives, including by implementing specific human rights obligations. The final section considers whether the human right to water can be used as a defence in investor-State dispute settlement (ISDS) by the respondent state. Special attention will be paid to the recent award by an arbitral tribunal under the rules of the International Centre for the Settlement of Disputes (ICSID), namely the Urbaser v Argentina.