Human Rights & Environment in Investment Arbitration: A Tale of Two Wars and Two Battles (Aguas V Argentina; Glamis Gold V. USA)
17 Pages Posted: 31 Oct 2017
Date Written: October 29, 2017
Human rights and environment are those two chapters seldom found in most treaties and treatise on international investment law. Most investment tribunals prefer to skilfully skirt the issues with the apprehension of developing the law one way or the other or over-stepping their mandate. They represent two issues which have historically, and will perhaps in future, symbolize ‘bones of contention’.
This 'tug-of-war' has been repeatedly fought between states inter se across negotiation tables and between states and investors in arbitral proceedings. History has shown that some, though not all, international corporations have blatantly disregarded human rights and the host state's environment. Instances like 'Bhopal gas tragedy' and 'Lempa river' fiasco may have faded in the memory of the international community but have forever scarred the victims. But this is a cyclic debate, for foreign investors come to developing countries to do what they cannot in their own. Thus, the competing interests have to be balanced to ensure sustainability.
This article discusses the controversies surrounding Human Rights and Environment in Investment Arbitration from the perspective of 2 leading caselaw 1. Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19 and Glamis Gold, Ltd v United States of America, Award of 8 June 2009,  48 ILM 1039 (International Centre for Settlement of Investment Disputes).
Keywords: Investment Arbitration, Human Rights, Environment, Investment Law, Aguas, Vivendi, Suez, Argentina, Glamis Gold, ISDS, ISA, ICSID, NAFTA, Investment, Arbitration
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