A Question of Balance: Incorporation of Human Rights in Investor-State Arbitration

Abstract

This paper discusses the interaction between investor-state arbitration and international human rights. It reviews the present interaction between human rights and arbitration, then examines the rights of the investor, before canvassing the treatment of human rights to date in investor-state arbitration. Investors must assume that states will always act to protect and uphold the human rights of their populations. This is achieved through expanding the current ambit of legitimate expectations, which have become an established aspect of investor-state arbitration. The paper then argues for the availability of both a defence on the merits and a counterclaim for raising the states counterarguments on the protection of human rights, with a heavy onus placed on the importance of proportionality to act as a balance between the rights of the state to uphold human rights and the rights of the investor. Finally, the paper discusses how an increased onus on human rights can assist in addressing the legitimacy crisis of investor-state arbitration.