International Corporate Obligations, Human Rights, and the Urbaser Standard: Breaking New Ground?
22 Pages Posted: 14 Jun 2017
Date Written: May 12, 2017
The December 2016 ICSID Tribunal Award of Urbaser v. Argentina — the latest in the ISDS arbitral saga spawned by the 2001 Argentine financial crisis — has caused quite a stir amongst international human rights lawyers who speculate that the decision may signal an ‘inroad’ to hold corporations liable for human rights violations under public international law. Accordingly, this paper poses the question: What does Urbaser actually change about international arbitral practice? Or put another way, should international lawyers ‘believe the hype’? Through a hypothetical testing of the standards Urbaser sets forth (including an analysis of the mens rea standards Urbaser requires of international corporate actors), and after a thorough exploration of Urbaser’s premises against the backdrop of debates on the ‘subjectivity’ of corporations under international law, this paper concludes that although Urbaser goes to certain theoretical lengths to impose international legal obligations on investors, the standards it sets forth fall short of changing the status quo for corporations under international law — at least for now. After situating Urbaser within current ISDS debates regarding the asymmetry of the international investment system and the growing relevance of CSR standards, as well as Ruggie’s ‘Protect, Respect, Remedy’ framework for corporations under international law, and after emphasizing the ‘nominal’ nature of much of Urbaser’s language, the paper concludes by commenting on how Urbaser may change and contribute to the debate regarding corporate human rights obligations under international law.
Keywords: ISDS, Human Rights, CSR, Corporation, Asymmetry, Obligations, Public International Law, Private International Law, Corporate Subjectivity, Corporate Personhood, ‘Protect, Respect, Remedy’, ICL, Mens Rea, Argentina
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