Pub Date : 2018-07-10DOI: 10.1163/23527072-00101002
Pavel Šturma
The implicit inclusion of human rights and other public goods in international investment law by way of interpretation is always contingent on various factual and legal elements. Consequently, it cannot ensure that all investment arbitration tribunals will arrive to the same or at least similar conclusions when it comes to the inclusion of human rights. That is why the trend to include explicit provisions or references into the newly negotiated IIAs seems to be advisable. The article aims at presenting some new trends in both treaties (BITs and other IIAs) and awards of investment tribunals.
{"title":"Public Goods and International Investment Law: Does the New Generation of IIAs Better Protect Human Rights?","authors":"Pavel Šturma","doi":"10.1163/23527072-00101002","DOIUrl":"https://doi.org/10.1163/23527072-00101002","url":null,"abstract":"The implicit inclusion of human rights and other public goods in international investment law by way of interpretation is always contingent on various factual and legal elements. Consequently, it cannot ensure that all investment arbitration tribunals will arrive to the same or at least similar conclusions when it comes to the inclusion of human rights. That is why the trend to include explicit provisions or references into the newly negotiated IIAs seems to be advisable. The article aims at presenting some new trends in both treaties (BITs and other IIAs) and awards of investment tribunals.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124757893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-07-10DOI: 10.1163/23527072-00101004
Edward Guntrip
International investment law balances public and private interests within the broader framework of international law. Consequently, when water supply services, which constitute a public good, are privatized and operated by foreign investors, questions arise regarding whether foreign investors could be held responsible for the right to water under international law. This article considers how the tribunal in Urbaser v. Argentina allocated responsibility for compliance with the right to water between the host State and the foreign investor when resolving a dispute over privatized water services. It highlights how the tribunal in Urbaser v. Argentina supports different understandings of public and private based on whether the human rights obligation is framed in terms of the duty to respect or protect. The article argues that the tribunal’s rationale overcomplicates the process of allocating responsibility for violations of the human right to water when water supply services have been privatized.
{"title":"Private Actors, Public Goods and Responsibility for the Right to Water in International Investment Law: An Analysis of Urbaser v. Argentina","authors":"Edward Guntrip","doi":"10.1163/23527072-00101004","DOIUrl":"https://doi.org/10.1163/23527072-00101004","url":null,"abstract":"International investment law balances public and private interests within the broader framework of international law. Consequently, when water supply services, which constitute a public good, are privatized and operated by foreign investors, questions arise regarding whether foreign investors could be held responsible for the right to water under international law. This article considers how the tribunal in Urbaser v. Argentina allocated responsibility for compliance with the right to water between the host State and the foreign investor when resolving a dispute over privatized water services. It highlights how the tribunal in Urbaser v. Argentina supports different understandings of public and private based on whether the human rights obligation is framed in terms of the duty to respect or protect. The article argues that the tribunal’s rationale overcomplicates the process of allocating responsibility for violations of the human right to water when water supply services have been privatized.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127396189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-07-10DOI: 10.1163/23527072-00101003
P. Abel
The 2016 ICSID award in Urbaser v. Argentina affirmed for the first time the possibility of a counterclaim in investment arbitration based on an international investor obligation under the human right to water. But to denounce a break-through and fundamental change in both international investment and human rights law would be premature. This article deconstructs the award’s reasoning and sheds light on its doctrinal fallacies, in particular the award’s unclear construction of the integration of a human rights obligation into investment arbitration and its misled argumentation on the existence of an international human rights obligation of private actors under the human right to water. Concluding that the award cannot be sustained under the current state of international law, the article then reflects on the potential of the award’s conception of human rights counterclaims for the future of international investment law and international human rights law.
{"title":"Counterclaims Based on International Human Rights Obligations of Investors in International Investment Arbitration","authors":"P. Abel","doi":"10.1163/23527072-00101003","DOIUrl":"https://doi.org/10.1163/23527072-00101003","url":null,"abstract":"The 2016 ICSID award in Urbaser v. Argentina affirmed for the first time the possibility of a counterclaim in investment arbitration based on an international investor obligation under the human right to water. But to denounce a break-through and fundamental change in both international investment and human rights law would be premature. This article deconstructs the award’s reasoning and sheds light on its doctrinal fallacies, in particular the award’s unclear construction of the integration of a human rights obligation into investment arbitration and its misled argumentation on the existence of an international human rights obligation of private actors under the human right to water. Concluding that the award cannot be sustained under the current state of international law, the article then reflects on the potential of the award’s conception of human rights counterclaims for the future of international investment law and international human rights law.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129644561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-07-10DOI: 10.1163/23527072-00101005
U. Kriebaum
Access to safe drinking water and potential water degradation have played a role in many water-related investment arbitrations. This paper looks at two different types of investment cases that have emerged with an impact on water: First, it analyses cases that have arisen from privatizations in the water sector. They mainly concern problems connected with physical access to water and affordability. Second, it discusses cases concerning investments in other industries that have the potential to degrade water quality or to have a negative impact on the maritime environment. Using these typical constellations it focuses on the methodology tribunals adopt to deal with potential tensions between the right to water and investor rights.
{"title":"The Right to Water Before Investment Tribunals","authors":"U. Kriebaum","doi":"10.1163/23527072-00101005","DOIUrl":"https://doi.org/10.1163/23527072-00101005","url":null,"abstract":"Access to safe drinking water and potential water degradation have played a role in many water-related investment arbitrations. This paper looks at two different types of investment cases that have emerged with an impact on water: First, it analyses cases that have arisen from privatizations in the water sector. They mainly concern problems connected with physical access to water and affordability. Second, it discusses cases concerning investments in other industries that have the potential to degrade water quality or to have a negative impact on the maritime environment. Using these typical constellations it focuses on the methodology tribunals adopt to deal with potential tensions between the right to water and investor rights.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114593319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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