Investment Treaty Law, Sustainable Development and Responsible Business Conduct: A Fact Finding Survey

OECD Working Papers on International Investment 2014/01

76 Pages Posted: 26 Jul 2014

See all articles by Kathryn Gordon

Kathryn Gordon

Investment Division, OECD

Joachim Pohl

Organization for Economic Co-Operation and Development (OECD) - Investment Division

Marie Bouchard

Organisation for Economic Co-operation and Development

Date Written: July 22, 2014

Abstract

Investment treaty law is a crucial but complex basis for regulating international investment flows. The treaty network and related dispute settlement procedures are currently coming under criticism for a variety of reasons, including on whether they adequately support sustainable development in host countries. The present paper establishes a factual, statistical basis for exploring the textual relationship between investment treaty law and sustainable development by analyzing 2107 investment treaties and 1113 arbitration awards based on investment treaties. In particular, the survey looks at the treaties' language in relation to four sustainable development issues: environmental protection, labor conditions and standards, anti-corruption and human rights.

The survey of treaty language shows that while inclusion of sustainable development issues has become the dominant treaty practice in recent years -- especially for investment chapters in free trade agreements -- older treaties without such language continue to dominate the overall treaty population. The survey also shows wide divergences across countries' treaty practices in terms of the broad approach and specific language used for dealing with these issues in investment treaties.

The survey of 1113 treaty-based arbitration awards shows that 26% mention at least one of the four sustainable development concerns, with the references to environmental protection being the most frequent followed by corruption. Human rights are infrequently mentioned and labor standards and protection are not mentioned in any of the awards examined. The survey also shows that the awards occasionally cite to other international legal instruments, with the most common citations being the European Convention on Human Rights (cited in 27 decisions).

Keywords: corruption, investor state arbitration, human rights, bribery, labour law, ISDS, investment treaties, environmental law

JEL Classification: F23, F53, K11, K33

Suggested Citation

Gordon, Kathryn and Pohl, Joachim and Bouchard, Marie, Investment Treaty Law, Sustainable Development and Responsible Business Conduct: A Fact Finding Survey (July 22, 2014). OECD Working Papers on International Investment 2014/01, Available at SSRN: https://ssrn.com/abstract=2469662 or http://dx.doi.org/10.2139/ssrn.2469662

Kathryn Gordon (Contact Author)

Investment Division, OECD ( email )

2 rue André Pascal
Paris, 75016
France
(331) 45 24 98 42 (Phone)
(331) 45 24 90 50 (Fax)

Joachim Pohl

Organization for Economic Co-Operation and Development (OECD) - Investment Division ( email )

2 rue André Pascal
Paris, 75775
France

Marie Bouchard

Organisation for Economic Co-operation and Development ( email )

2 rue Andre` Pascal
Paris, 75116
France

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