Recent Trends in Investment Arbitration on the Right to Regulate, Environment, Health and Corporate Social Responsibility: Too Much or Too Little?

Abstract

The article addresses the recent trends in investment arbitration, focusing on the evolution of international investment agreements from the perspective of the right of the States to regulate in public interest, as well as of the provisions concerning environment, health, and corporate social responsibility. These issues have been chosen because they highlight areas where the tension between sovereign and private interests is evident, as well as where States often face resistance in implementing public policy. Furthermore, the discussion is opportune as the mandate entrusted to the UNCITRAL Working Group III concerned with investor-State dispute settlement reform is limited to procedural aspects of such reform, leaving to the discretion of the States, as treaty-makers, the regulation of the substantive issues concerning foreign investments. The analysis of the international investment agreements concluded between January 2018 and December 2020 demonstrates that treaty language is constantly evolving to protect and expand the scope of States’ regulatory autonomy. The article concludes that investor-State dispute settlement remains the framework in which environmental, human rights and corporate social responsibility obligations can be smoothly integrated within the international investment law, allowing both States and investors to take advantage of and be held accountable for their respective obligations.