Investment Arbitration and Human Rights

Governments’ legal obligations under international investment law and international human rights law are occasionally in tension. No inherent conflict exists between these distinct legal regimes. Yet in specific situations, governments’ efforts to address some stakeholders’ rights or interests may lead to liability for harming the rights or interests of others. Actions to protect human rights may violate investor protections under a treaty or an investor’s rights under a contract; similarly, actions to protect investments may violate human rights.

CCSI focuses on the intersection of these two international legal regimes, and the impacts of their application for the most vulnerable of rights-holders. Among other things, this includes a specific focus on investment arbitrations, and their implications for the realization of human rights. Work on investment arbitrations and human rights has included:

• The Tribunal - a film created by Malcolm Rogge in partnership with CCSI - tracks the experiences of community members in the Intag Valley in Ecuador who were directly impacted by a potential mining project, a dispute that erupted as a result of the project, and the eventual arbitration proceedings in which the Canadian mining company sued the Ecuadorian government under the Canada-Ecuador bilateral investment treaty.
• A CLE workshop on investment arbitration and human rights, which gathered experts to examine which human rights issues may be implicated in investment disputes, as well as how and to what extent the issues have been handled by parties and arbitrators; to explore how parties might effectively raise human rights norms and issues in the course of an arbitration; and to evaluate the roles and obligations of tribunals in considering such arguments.
• Research on whether access to justice for investors via investment arbitration affects access to justice for rights-holders.
• Efforts to raise human rights arguments within a specific investment arbitration dispute through an amicus submission.
• Speaking engagements on human rights and international investment arbitration, including panels at Harvard Law School and a Loyola University Chicago Law Journal Symposium.
• Academic writing, including: “Human Rights Law and the International Investment Regime,” Research Handbook on Human Rights and Business (forthcoming); “At the Intersection of Land Grievances and Legal Liability: The Need to Reconsider Contract Rights and Expectations at the Supranational Level,” Loyola University Chicago Law Journal (forthcoming); and “Corporate agricultural investment and the right to food: Addressing disparate protections and promoting rights-consistent outcomes,” UCLA Journal of International Law and Foreign Affairs (2016).