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A Useful Line of Attack or a Defence Tool for States in Investor-State Dispute Settlement?
Published online by Cambridge University Press: 22 July 2019
In international investment law, investor-claimants often have recourse to human rights case law in order to support a certain interpretation of investment protection standards, such as denial of justice and the prohibition on expropriation of private property without compensation. What is rarer, however, is that respondent States may invoke their human rights obligations in order to formulate a defence of their conduct towards a particular investor, or even to formulate a counterclaim. After briefly outlining investors’ reliance on human rights rules to support their claims, this chapter investigates the potential of invoking human rights norms by respondent States in order to persuade a tribunal that, first, it does not have jurisdiction; secondly, no investment protection standard has been violated; or, thirdly, damages ought to be calculated in a certain manner. Subsequently, three specific issues that may complicate the invocation of human rights norms in investor-State dispute settlement are examined: the difference between human rights obligations and objectives; State acquiescence or complicity to human rights violations; and human rights counterclaims.
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