The Use (and Misuse) of European Human Rights Law in Investor-State Dispute Settlement

Abstract

For some time, critics of investor-state dispute settlement (ISDS) have urged its arbitrators and litigants (particularly respondent states) to draw from other sources of international law, particularly human rights law, to promote interpretations of international investment agreements (IIAs) that cohere with other international legal regimes, including human rights values. Some have hoped that the use of human rights law would not only lessen the fragmentation of international law encouraged by self-regarding mechanisms such as ISDS but would also promote the "re-balancing" of IIAs to permit greater scope for sovereigns to regulate. This essay examines the ways European human rights law has been cited in publicly available investor-state awards. It finds considerable reliance on such citations in the largest known database of such awards. But close examination of such citations, including in the recent Philip Morris v. Uruguay case dealing with tobacco regulation, casts doubt on whether this reliance is likely to produce the results that some anticipate. Investor-claimants are as likely to cite to European human rights law as are respondent states. It is not at all clear from the results to date that recourse to human rights has either 'humanized' international investment law or made it more coherent.

Keywords: international law, international investment law, investor-state arbitration, human rights law