Investor – state arbitration and human rights Filip Balcerzak examines the interrelations between human rights and international investment law.
The work discusses whether, and how, human rights arguments may be presented in the course of arbitral proceedings based on investment treaties.
The work identifies three model situations, derived from existing arbitral jurisprudence, which provide the backdrop and methodological tool underpinning the book’s legal analysis. The work considers the perspectives of both host states and investors and analyzes all stages of arbitral proceedings – jurisdiction, admissibility, merits, compensation and costs – to determine the potential impact of human rights on the outcome of proceedings.
Filip Balcerzak, Ph.D., LL.M., member of the Warsaw (adwokat) and Madrid (abogado) Bar Associations, Senior Associate at SSW Law Firm in Poland. He holds an LL.M. degree from Canada (University of Ottawa, 2011) and a Ph.D. degree from Poland (Adam Mickiewicz University in Poznań, 2016).
“If the current system of investor – State arbitration is to survive, every effort must be made to increase the readiness among its participants to render legitimate public policy concerns effective. In this context, respect for human rights deserves pride of place. That is why Balcerzak’s work, the first English- language treatment of the potential impact of human rights on investment arbitration in book format, is so important. The author’s sober and hands-on approach should dispel the concern of arbitrators and counsel that the inclusion of human rights arguments would “politicize” their case.”
Bruno Simma, Member of the Iran-United States Claims Tribunal, Former Judge at the International Court of Justice
Model Situations When Human Rights are Relevant for Investor – State Arbitration 1 Identification of Model Situations
2 First Model Situation – Host States Invoking Human Rights in the Absence of Violations Having been Committed by Investors
Invocations of the General Notion of Human Rights ii
Invocations of Specific Human Rights iii
Human Rights Referred to by Arbitral Tribunals 3 Second Model Situation – Host States Invoking Human Rights Where Violations Have been Committed by Investors
4 Third Model Situation – Investors Invoking Human Rights
5 Interrelations between the Model Situations
Human Rights Context of Jurisdiction and Admissibility in Investor – State Arbitration 1 Scope of Jurisdiction of Tribunals in Investor – State Arbitration and Human Rights
General Remarks on the Grounds of Jurisdiction of Arbitral Tribunals ii
Characteristics of the Consent to Arbitrate Given in Investment Treaties iii
Types of Jurisdictional Limits and Their Possible Consequences iv
Types of Jurisdiction Clauses Typically Present in Investment Treaties v
Scope of Arbitral Tribunals’ Jurisdiction in Investor – State Arbitration and Human Rights Invoked by Investors vi
Scope of Arbitral Tribunals’ Jurisdiction in Investor – State Arbitration and Human Rights Invoked by Host States 2 Admissibility of Claims in the Light of Possible Human Rights Violations Committed by Investors and the Requirement to Undertake Investments in Accordance with Local Law
Distinction between Jurisdiction and Admissibility in International Investment Law ii
“In Accordance with Local Laws” Requirement iii
Non-explicit “in Accordance with Local Laws” Requirement iv
Admissibility of and Jurisdiction Over Claims Concerning Investments Made Contrary to Host States’ Laws Concerning Human Rights
The Impact of Human Rights on the Merits of Investor – State Arbitration 1 Influence of Human Rights on the Interpretation of the Provisions of Investment Treaties
General Rules of Treaty Interpretation ii
Fair and Equitable Treatment iii
Expropriation 2 Possibility of Invoking Investors’ Human Rights in the Course of Arbitral Proceedings
Compensation and Costs in Investor – State Arbitration and the Issue of Human Rights 1 Impact of Human Rights on the Level of Compensation Awarded in Investor – State Arbitration
General Remarks ii
Principles Governing Compensation in Investor – State Arbitration iii
Concept of Contributory Negligence iv
Contributory Negligence and Human Rights Violations Committed by Investors v
Reduction of Compensation and Remaining Human Rights Concerns vi
Concept of Moral Damages vii
Moral Damages and Violations of Investors’ Human Rights 2 Human Rights Considerations as a Justification to Shift Costs of the Proceedings
General Remarks ii
Rules Concerning the Burden of Costs iii
Decision on Costs and the Issue of Human Rights
Conclusions Bibliography Index
All interested in international investment law, arbitration and human rights, in particular academics, postgraduate students, lawyers involved in investment disputes (including in-house counsels), civil servants and the informed public.