CYIL vol. 11 (2020)

ONDŘEJ SVOBODA CYIL 11 (2020) foreign investors. 8 On the other hand, by way of new treaty provisions, human rights and other public goods are more present in new agreements, but they “cannot, in and themselves change the prevailing content of international investment law.” 9 In addition, most states are visibly reluctant to consider direct obligations of investors, typically multinational enterprises (MNEs), in their investment treaties. Interestingly, we can observe some innovative approaches in the context of the relationship between international investment law and human rights is in more recent investment disputes. 10 This article goes beyond the traditional legal regime for foreign investors consisting of the drafting of new investment treaties or an interpretation of existing ones by international tribunals. It goes further and assesses other tools at international and domestic levels to balance the investment protection regime. 11 By mapping and analysing the responsibilities of investors in international investment law this contribution aims to provide a better understanding of developments relating to investor and business responsibilities while devoting special attention to the current international and domestic law initiatives. 2. Taking broader perspective Investors’ responsibilities are certainly not a new issue. For instance, in 2003, the High Commissioner for Human Rights noted that “the strengthening of investors’ accountability towards individuals and communities might be a means of balancing the strengthened protection of investors’ rights through investor-State dispute mechanisms with the protection of human rights vis-à-vis investors.” 12 Traditionally, the main emphasis was placed on self-regulation supported by sanctions and self-regulation at a national level. Nevertheless, a number of actions targeting business conduct has been taken at international level to address business conduct of MNEs. As a result, there is a complex normative framework based on multiple standards and including instruments at national, bilateral, regional and universal level creating international legal obligations for 8 VANOS, R., KNOTTNERUS, R. Investment Protection Agreements, Human Rights and Sustainable Development: An Uneasy Mix. Development , 2016, Vol. 59, No. 10, p. 112. 9 ŠTURMA, P.: Public Goods and International Investment Law: Do the New Generation of IIAs Better Protect Human Rights? Brill Open Law , 2018, Vol. 1, No. 1, p. 7. 10 See e.g. Hesham Talaat M. Al-Warraq v. The Republic of Indonesia , UNCITRAL, Final Award, 15 December 2014; and its insightful analysis in COTULA, L. Human Rights and Investor Obligations in Investor-State Arbitration. Journal of World Investment & Trade , 2016, Vol. 17, No. 1, pp. 148-157; or Urbaser S.A. et al. v. The Argentine Republic , ICSID Case No. ARB/07/26 in which tribunal accepted the respondent state’s counterclaim based on investor’s misconduct amounting to a breach of human rights; or Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5 finding both domestic tort law and international law applicable to a counterclaim by operation of the general applicable law provision in the ICSID Convention. For broader considerations see BALCERZAK, F. Determination of Compensation in Investor–State Arbitrations: Is There a Place for Human Rights Arguments? In: BAETENS, F., CAIADO, J. (eds.) Frontiers of International Economic Law: Legal Tools to Confront Interdisciplinary Challenges . Leiden: Brill/Nijhoff, 2014, pp. 134-150. 11 ‘Balance’ is understood in the relation between aims of investment policy, for example, between protection and encouragement of foreign investment and other public or social purpose, such as the need to protect people and the environment on the other. For more details see HUAQUN, Z. Balance, Sustainable Development, and Integration: Innovative Path for BIT Practice. Journal of International Economic Law , 2014, Vol. 17, No. 2, pp. 323-325. 12 UN Economic and Social Council: Report of the High Commissioner for Human Rights (E/CN.4/ Sub.2/2003/9), para 40.

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