CYIL vol. 11 (2020)

CYIL 11 (2020) INVESTORS’ RESPONSIBILITIES BEYOND INVESTMENT TREATIES… There are still many open questions on putting the Hague Rules in practice. Disputing parties and other stakeholders may view the choice of arbitrators essential for an effective and legitimate system. Further questions relate to access to arbitration which depends on funding. If Business and Human Rights arbitration should provide accessible remedy to potential human rights claimant, some financial assistance is likely required as well as pro bono counsel services. 38 What could turn out to be problematic, is the reliance on the New York Convention for enforcement of awards because human rights related obligations are possibly of less commercial character which is required by the Convention. Finally, in relation to ISDS, there are several elementary distinctions. ISDS has predominant public interest character while Business and Human Rights arbitration retains private litigation character. ISDS is still in many cases confidential in spite of recent efforts. 39 The initiative does not call for establishment of a new arbitration institution nor it calls for a standing Business and Human Rights arbitration panel/tribunal. It is clear, therefore, that in the context of ISDS and a multilateral investment court, the proponents of the initiative do not see the current debate on the reform of ISDS in UNCITRAL as a viable venue. 5. Domestic initiatives to address transnational business operations Apart from international negotiations for a new instrument to address accountability gaps in relations to gross human rights violations, recent efforts to legalise business obligations are being introduced at the domestic level. 40 As investors’ conduct is regulated in domestic law and regulation which establish conditions for entrepreneurship activities, and voluntary standards, it is desirable to examine how can the protection granted to investors be at the same time articulated with their duties. While states bear principal responsibility for protection of human rights and general public interest, domestic legislatures and courts are main venues for the implementation of investors’ obligations and the subsequent regulation of their behaviour. This view has been shared by Ruggie who noted that “the more states of foreign investors should provide them with clear guidance about the context in which companies will operate, including its human rights risks.” 41 Accordingly, there are an increasing number of domestic laws designed to protect a wide range of human rights that apply directly to business entities. 5.1 General regulation Since 1980, the Alien Torts Statute had been used by aliens to bring claims in US courts for violations of international law, including human rights abuses. However, the application of the law for human rights violations did not last long. Its scope had been narrowed and in 2017 the US Supreme Court eventually decided that foreign corporations may not be 38 See e.g. a Financial Assistance Fund at helping developing countries meet part of the costs involved in international arbitration or other means of dispute settlement offered by the PCA. 39 The UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration and the United Nations Convention on Transparency in Treaty Based Investor-State Arbitration, in particular. 40 CHOUDHURY, B. Balancing Soft and Hard Law for Business and Human Rights. International and Comparative Law Quarterly , 2018, Vol. 67, No. 4, p. 982. 41 RUGGIE, J. G. Just Business: Multinational Corporations and Human Rights . New York: W. W. Norton &Company, 2013, p. 159.

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