CYIL vol. 11 (2020)

ONDŘEJ SVOBODA CYIL 11 (2020) model BITs of the Netherlands, Belgium, and Luxembourg as well as some already concluded treaties such as the Morocco – Nigeria BIT are prominent examples of the development. But at the same time, states remain mostly reluctant to include direct investor responsibilities in investment treaties. New instruments beyond investment treaties are being further developed in order to ensure that investors conduct their activities in accordance with all relevant norms, including those relating to environmental protection, human rights, labour laws. Among the most prominent ones, a group of states have been pushing for a multilateral binding treaty for business and human rights while other stakeholders focused on better enforcement in drafting of new arbitration rules. What is even more essential to realise is the fact that the balancing of investor protection and regulation can conceivably involve both domestic law regulation and international law provisions. National laws and regulations establish the basic conditions for investors to do business, but business and investor responsibilities are now widely discussed and enacted as supplements to such regulations usually in form of new binding domestic due diligence initiatives such as modern slavery acts or the Duty of Vigilance law with extraterritorial effect. Legality requirement, being a part of the majority of investment treaties and concerning the making of an investment in such treaties, provides an important link to the obligations imposed by the domestic legislature. To conclude, considering the colourful picture of various initiatives targeting investors’ conduct and its societal impact of different legal nature (soft law v. hard law; domestic law v. international law, bilateral v. multilateral initiatives, Home states regulation v. Host state regulation), there is no dispute over that we are witnessing the emergence of a pluralistic regime of investors’ responsibilities 63 because investment treaties are not the only way to incorporate investors responsibilities and balance the investment protection regime.

63 See also KRAJEWSKI, M. A Nightmare or a Noble Dream? Establishing Investor Obligations Through Treaty- Making and Treaty-Application. Business and Human Rights Journal , 2020, Vol. 5, No. 1, p. 129.

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