Common Features of the Right to Property and International Investments: Evidence from the use of ECtHR Case-law in Investment Tribunals’ Decisions

Abstract

The use of the case-law of the European Court of Human Rights (“ECtHR”) by arbitral tribunals represents a very common practice in investment arbitration. In particular guarantees provided for by Article 1 of Protocol 1 to the European Convention on Human Rights (“echr”) are often referred to in arbitral proceedings in order to clarify bilateral investment treaties’ (“bit s”) provisions because of their broad meaning, such as, for example, the expropriation and the fair and equitable treatment standards. Although this cross-reference is widespread, the legal grounds that allow the application of echr provisions in arbitral proceedings seem to be quite unexplored in the scholarly debate. The aim of this work is to analyze the different tools that have been used to this purpose, namely the systemic interpretation and analogical reasoning, explaining why the latter seems to be the most meaningful one. Since its application naturally implies the existence of common features between the different legal rules at stake, its employment represents a clear evidence of the similarities shared by the right to property and international investments. Patrimonial rights in international law share the same demand of protection, because of the power imbalance suffered by the owner or the investor in respect of State authorities. This acknowledgment can be useful in order to encourage ECtHR case-law application by arbitral tribunals, implementing investors’ protection and reducing the uncertainty of bit s’ provisions.