Human Rights and Investor–State Dispute Settlement Reform: Fitting a Square Peg into a Round Hole?

Abstract

Investor–State dispute settlement (ISDS) is undergoing a seismic shift, not least regarding its relationship with human rights. We apply the three ‘generations’ of human rights framework to ISDS reform, underscoring fundamental tensions between ISDS and human rights considerations. The resultant tensions are as varied as calls for reform spanning, inter alia, permissive human rights provisions in international investment agreements, inconsistent State practices regarding human rights in model agreements, and case law that largely ignores human rights considerations. We acknowledge these tensions, noting where they persist, as well as where the seeds of reform have already been sewn. We contend that ongoing ISDS reform efforts provide opportunities to infuse the ISDS architecture with a newfound emphasis on all generations of human rights, thereby overcoming many of the persistent tensions that have previously encumbered efforts to develop synergies between ISDS and international human rights law.