BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

On the other hand, protection and promotion of investments, under BITs or some other IIAs, are based on the principle of reciprocity. Those agreements only protect investors and investments of one State party in the territory of the other State party. The respective treaty instruments usually provide for the rights of investors and the obligations of States. They also allow, in a more or less express way, for asserting certain rights of the host State, representing public interests, but they generally disregard other persons and their rights. Nevertheless, human rights can be viewed as a kind of global public good. As such, they can be used, directly or indirectly, as defences where appropriate. To be able to do so, States should take care in drafting BITs and other IIAs. It seems that a certain disbalance in favour of private interests (investors and their investments) and against general interests has been widely recognized. The situation has started to change, in particular over the past ten years. It is certainly a response to a growing backlash against international law and arbitration. In addition to some arbitral decisions, some new model BITs and new IIAs are drafted in a more balanced way. These agreements also include sometimes questioned mega-regionals, such as the Comprehensive Economic and Trade Agreement (EU-Canada, CETA), 1 or the project of the Transatlantic Trade and Investment Partnership (EU-US, TTIP), etc. In particular, the public consultation on the Investment chapter of theTTIP, organized by the European Commission in 2014, revealed the above-mentioned backlash. 2 Based on the results of this consultation, the EC presented its concept paper “Investment in TTIP and beyond – the path for reform. Enhancing the right to regulate and moving from current ad hoc arbitration towards an Investment Court”. 3 As it appears from the title, the EC revisited its existing investment policy. It focused not only on the replacement of the traditional model of the investor-State dispute settlement (ISDS) by an Investment Court but also on further enhancing the right to regulate. 2. Indirect protection of human rights through the incorporation of public goods and interests in IIAs The key question is whether new developments in the field of international investment law are capable of contributing to a better protection of human rights. This question is not an easy one, in particular because of the diversity of the IIAs and a scarcity of the express provisions on human rights or similar concepts. Such an outcome can be reached by more ways, including more detailed and specific drafting of certain absolute standards of treatment (such as the fair and equitable 1 EU-Canada Comprehensive Economic and Trade Agreement (CETA), consolidated version of all chapters (http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf). 2 European Commission, Report: Online public consultation on investment protection and investor-to- state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP), SWD (2015) 3 final, Brussels, 13 January 2015, available at http://trade.ec.europa.eu/doclib/2015/ january/ tradoc_153044.pdf . 3 European Commissioner for Trade, Concept Paper, Investment inTTIP and beyond – the path for reform. Enhancing the right to regulate and moving from current ad hoc arbitration towards an Investment Court, 5 May 2015, available at http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.pdf .

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