Investor – State Arbitration and Human Rights

Series:

In 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.


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Biographical Note

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).

Review Quotes

“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

Table of contents

Acknowledgements
Introduction

1 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
  i  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

2 Human Rights Context of Jurisdiction and Admissibility in Investor – State Arbitration
 1 Scope of Jurisdiction of Tribunals in Investor – State Arbitration and Human Rights
  i  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
  i  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

3 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
  i  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

4 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
  i  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
  i  General Remarks
  ii  Rules Concerning the Burden of Costs
  iii  Decision on Costs and the Issue of Human Rights

Conclusions
Bibliography
Index

Readership

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.