BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

the existing IIAs. On balance, it may indeed strengthen the current backlash against the existing investment agreements and, in particular, against the ISDS, namely the investment arbitration. To end with a more optimistic perspective: irrespective of the actual success or failure of a treaty on business and human rights, the Zero Draft or other outcomes of the IGWG work made it to the current and future discourse on the topic that remains extremely important. As it often happens, even the first, generally rejected project of a new instrument may lead to new rounds of negotiation capable to bring more tangible results. 6. Conclusion To conclude, it seems that the award in Urbaser opened the doors for a human rights counterclaim by the host State. On balance, it did not give full effect to human rights on the merits. It remains to be seen which sources and which human rights can establish obligations for non-state actors in general and in the investment arbitration in particular. Those who wish to rely on interpretative tools or by way of counterclaims in investment arbitration may be disappointed. However, in view of the recent developments the question is whether the glass is half-full or half-empty. Anyway, the implicit inclusion of human rights and other public goods in international investment law by way of interpretation is always contingent on various factual and legal elements. Consequently, it cannot ensure that all tribunals will arrive at the same or at least similar conclusions. That is why the trend to include explicit references into the newly negotiated IIAs seems to be advisable. This way seems to be more realistic (and some practical examples of modern BITs or other IIAs are available) than an alternative path. Even if the current version of a draft UN treaty on business and human rights fails to satisfy high expectations, it may nonetheless stimulate the future work on this extremely important topic.

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