Investment Protection Treaties and Human Rights II

 

A common investment treaty provision is an obligation to provide foreign investors with “full protection and security”. This undertaking obliges states to exercise “due diligence” in ensuring the protection of foreign investments. In a recent investment treaty arbitration against Mexico, a Spanish multinational company alleged that state authorities breached this undertaking, by failing to act as quickly and thoroughly as possible in order to “prevent or put an end to the adverse social demonstrations” that had dogged the investor’s controversial hazardous-waste treatment facility. In short, this was one of those common instances where critics and protestors exerted pressure on a controversial foreign investment proj­ect so as to cause inconvenience and loss to the foreign-owned business.

For its part, the investment tribunal faced a potential situation where it would need to determine whether the state had failed to guarantee “full protection and security” to the foreign investors. However, the tribunal noted that, in this instance, there was “not sufficient evidence supporting the allegation that the Mexican authorities, whether municipal, state or federal, have not reacted reasonably, in accordance with the parameters inherent in a democratic state, to the direct action movements conducted by those who were against the landfill.”

The tribunal’s opinion was notable for offering a reference to “parameters inherent in a democratic state”, seemingly recognizing the obligation for a democratic state to ensure the right of protest. However, the tribunal gave no indication of how to balance this human rights obligation with the obligation to provide foreign investors with “full protection and security”. In this case, the claimant’s failure to provide sufficient evidence regard­ing the conduct of the Mexican authorities meant that the tribunal did not need to address this delicate subject further. Nevertheless, it is a question that may arise in subsequent disputes.

As it seems that investor-state disputes can raise certain human rights concerns, then clearly the human rights community ought to devote great­er attention to the burgeoning international law of foreign investment.

Less clear is how investment tribunals will address those human rights concerns. Often, the applicable law governing investment treaty arbitra­tions will include “applicable rules of international law”, thereby open­ing the way for tribunals to consider a host state’s international human rights obligations. However, it is less clear that tribunals will fairly weigh these competing international legal obligations of states, or that they are equipped to undertake the sensitive balancing of investor protections and human rights.

 

Often, arbitrators are drawn from the ranks of practicing investment lawyers, and will have a commercial arbitration background. Human rights specialists are rarely found on these tribunals, although a party would be free to appoint an individual with a human rights orientation as one of the three presiding arbitrators.

A more elementary challenge, however, is the fact that arbitrations almost always occur behind closed doors, rendering it difficult, if not impossible, to ascertain how human rights arguments are relevant to a given arbitra­tion. While the final decision of the tribunal may be relied upon to reveal what the tribunal thought of any human rights dimension, these decisions are not always made public, and only under the ICSID system are deci­sions routinely published.

Given the potential for human rights issues to crop up in future invest­ment treaty disputes, there is a need for human rights professionals to familiarize themselves with the features of the emerging international regime on foreign investment. Ongoing negotiations of new investment treaties, as well as arbitrations under existing treaties, may harbor impli­cations for human rights.

While investment treaty arbitration suffers from a lack of transparency, there are some tools at the disposal of the public to track this field. Likewise, there have been some efforts by concerned parties to intervene in ongoing investment treaty arbitrations, so as to bring human rights considerations to the attention of tribunals. Looking to the future, further initiatives will be necessary to educate and inform the human rights community about the growing relevance of foreign investment law to human rights.

 

 

Bibliography:

Peterson, Luke: Human Rights, Trade and Investment matters, in: Amnesty International, 2006

oder erhältlich auf der Seite:

www.amnestyusa.org/business/HRTradeInvestmentMatters.pdf

Investment Protection Treaties and Human Rights I

Im folgenden Artikel handelt es sich um die Problematik der Investitionsschutz und der Menschenrechte. Ich denke, hier ist die generelle Spannungsverhältnisse zwischen beiden verständlich dargestellt.

Der Artikel ist relativ lang, also stelle ich hier den ersten Teil, und gleich letzteren Teil.

  

 

Investment Protection Treaties and Human Rights

For several decades, governments and business interests have sought to draft a so-called Multilateral Agreement on Investment (MAI). Such an agreement would provide high levels of international legal protection for businesses investing in other territories. The MAI project has met with fierce public opposition from groups and individuals concerned with development, the environment, social justice and human rights.

 

Although both the OECD and the WTO have failed in their efforts to conclude a multilateral framework for protection of foreign investment, efforts have proven much more fruitful at the bilateral and regional level. Each year, literally dozens and dozens of bilateral investment treaties are concluded in negotiations that rarely garner any media attention or scru­tiny from civil society groups.

Today, upwards of 2,400 bilateral investment treaties (BITs) have been negotiated, along with hundreds more free trade agreements (FTAs) containing some form of protection for foreign investments.

The steady growth of international investment protections—whether they are found in purpose-built BITs, broader FTAs, or in a yet-to-be-realized MAI—harbor clear implications for human rights.

As a rule, investment treaties are one-sided instruments. They are concerned with limiting the measures that may be taken by governments against foreign investors or foreign-owned investments. The treaties contain a series of rights for inward capital—protection against expropria­tion, guarantees of non-discrimination, and freedom to transfer funds out of a host state—but they lack any counter-balancing investor responsibilities.

 

In the event of investor misconduct that impacts on the rights of indi­viduals or groups in the territory where the investment takes place, the treaties offer little comfort to those victims—investor protections are not conditional on minimum investor responsibilities, nor do they provide any mechanism for challenging investor wrong-doing.

 

Simply because the treaties are silent on human rights does not indicate that they have no impact upon human rights. Most investment treaties contain an innovative dispute settlement mechanism that offers foreign investors direct legal personality under international law to mount disputes against their host government. Generally, governments give an “open invitation” in the treaty to submit to arbitration any investment disputes that should arise between themselves and a foreign investor of a state that is a treaty signatory. These legal disputes may center upon a variety of alleged intrusions by host governments against foreign investors, includ­ing allegations that certain regulations, laws or policies have a significant negative impact upon the investor’s operations.

 

Arbitrations between investors and states are occurring in increasingly large numbers, thanks to the broad offers of arbitration contained in the treaties.Some of the most high profile of these international lawsuits have arisen under the investment chapter of the North American Free Trade Agreement (NAFTA). Indeed, certain of these NAFTA claims have attained a degree of notoriety because they involved investor challenges to health or environmental measures imposed by a NAFTA government on a foreign investor.

However, while NAFTA attracts the lion’s share of attention, the majority of investor-state arbitrations take place under other international invest­ment treaties—most of them obscure bilateral treaties. Moreover, while the NAFTA governments (Canada, Mexico and the United States) have committed to publicize all arbitrations arising under that agreement, arbitrations under bilateral treaties come to public attention much less frequently, as there are few transparency obligations contained in such treaties.

This lack of transparency in foreign investment dispute settlement is critical, because states may face disputes when their international commitments on investment protection come into tension with their international (and national) obligations to protect human rights.

Research by the author for the International Institute for Sustainable Development has highlighted one notable area where the two legal regimes may interact: privatization of drinking water concessions in developing countries.

To date, some nine arbitrations arising out of foreign investments in the water sector have been lodged at the World Bank’s investment arbitration facility, the International Centre for Settlement of Investment Disputes (ICSID). While the details of each dispute differ—and public information about some of them is limited—some of the cases do implicate sensitive regulatory questions relating to water quality, the pricing of water, access to water for those unable to pay, and the expropriation of public wells.

Governments playing host to such foreign investments may be bound under international law to work towards achieving the full realization of the right to water for its population. So governments might find them­selves in situations where regulatory measures taken in pursuit of that obligation might come into friction with broad protections contained in bilateral investment treaties designed to limit the types of regulatory and administrative treatment to which foreign investors may be subjected.

 

Fortsetzung folgt.

 

Notwendigkeit der BITs

Mit der Globalisierung erweitert sich die Auswirkung der internationalen Unternehmen, allerdings sind die Unternehmen kein völkerrechtliches Subjekt, damit sind sie weder an das Völkergewohnheitsrecht noch an die internationalen Verträge bindend.

Um diese Einschränkungen zu überwinden schließen die Staaten BITs (bilateral investment treaty/ ein anderes Word FDI : Foreign direct investment) ab, damit die Staaten für die Aktivitäten der jeweiligen Unternehmen Verantwortung nehmen. Natürlich sind diese BITs nicht ausreichend die menschenrechtlichen Probleme zu lösen. Nicht selten genießen die Prozesse über solche Fälle lacuene in law (wie Gesetzeslücke). Also sind die Bemühungen um diese Problematik notwendig.

Hinweis für BIT:

A Bilateral Investment Treaty (BIT) is an agreement establishing the terms and conditions for private investment by nationals and companies of one state in the state of the other. This type of investment is called Foreign direct investment (FDI). BITs are established through trade pacts.

Most BITs grant investments made by an investor of one Contracting State in the territory of the other a number of guarantees, which typically include fair and equitable treatment, protection from expropriation, free transfer of means and full protection and security. The distinctive feature of many BITs is that they allow for an alternative dispute resolution mechanism, whereby an investor whose rights under the BIT have been violated could have recourse to international arbitration, often under the auspices of the ICSID (International Center for the Resolution of Investment Disputes), rather than suing the host State in its own courts.

There are currently more that 2500 BITs in force, involving most countries in the world. Influential capital exporting states usually negotiate BITs on the basis of their own „model“ texts (such as the US model BIT).

ICSID : International Centre for Settlement of Investment Disputes

Noch eine weitere Einführung zum Thema „Human Right and Investment Protection in International Disputes“

In Fällen der Investment Disputes spielt ICSID (International Centre for Settlement of Investment Disputes) bzw. die ICSID Konvention als ein multinationaler Vertrag eine wichtige Rolle . Derzeit sind 155 Staaten in diesen Vertrag eingetreten.

Folgendes ist allgemeine Infomation über ICSID, soll grob im Hinterkopf behanten werden.

ICSID is an autonomous international institution established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID or the Washington Convention) with over one hundred and forty member States. The Convention sets forth ICSID’s mandate, organization and core functions. The primary purpose of ICSID is to provide facilities for conciliation and arbitration of international investment disputes.

The ICSID Convention is a multilateral treaty formulated by the Executive Directors of the International Bank for Reconstruction and Development (the World Bank). It was opened for signature on March 18, 1965 and entered into force on October 14, 1966.

The Convention sought to remove major impediments to the free international flows of private investment posed by non-commercial risks and the absence of specialized international methods for investment dispute settlement. ICSID was created by the Convention as an impartial international forum providing facilities for the resolution of legal disputes between eligible parties, through conciliation or arbitration procedures. Recourse to the ICSID facilities is always subject to the parties’ consent.

As evidenced by its large membership, considerable caseload, and by the numerous references to its arbitration facilities in investment treaties and laws, ICSID plays an important role in the field of international investment and economic development.

Today, ICSID is considered to be the leading international arbitration institution devoted to investor-State dispute settlement.

Ausführliche Info :

http://icsid.worldbank.org/ICSID/Index.jsp ;

http://en.wikipedia.org/wiki/International_Centre_for_Settlement_of_Investment_Disputes