The Role of Human Rights in International Investment Arbitration: Arguments Raised by the Parties and Procedural Implications

Abstract

This article focuses on human rights arguments raised in investment arbitration, and examines their role in the adjudication of investment disputes. It is indicated that the rejection of human rights arguments is not necessarily based on the inapplicability of human rights claims to the investment arbitration process. As shown in several cases, arbitral tribunals refused to accept human rights arguments, mainly because the parties to the dispute failed to demonstrate any relevance or impact of their claim on the investment at stake. Still, no solid legal reasoning can be noticed when tribunals rejected the relevance of human rights. Nevertheless, even if the current legal framework does not favour further involvement of human rights-based claims, we observe several developments in the treaty making practices. Such practices seek to “harmonize” human rights concerns with the international investment regime by introducing corporate social responsibility (CSR) standards or by including specific provisions relating to human rights.