The OECD Guidelines for Multinational Enterprises and International Investment Agreements: Converging Universes

published in Nicola Bonucci and Catherine Kessedjian (eds), 40 ans des lignes directrices de l’OCDE pour les entreprises mulinationales/40 Years of the OECD Guidelines for Multinational Enterprises (Pedone 2018) 63-78

Amsterdam Law School Research Paper No. 2019-18

Amsterdam Center for International Law No. 2019-07

15 Pages Posted: 20 Dec 2019

Date Written: 2018

Abstract

This paper addresses the impact the OECD Guidelines for Multinational Enterprises have on the field of international investment law. More specifically, the paper shows how the Guidelines, and similar instruments of corporate social responsibility (CSR), as well as the underlying concerns and interests they protect, are increasingly finding their way into the texts of investment agreements, and are being referred to by disputing parties and arbitral tribunals as instruments with legal authority in the interpretation and application of investment agreements. The paper also assesses critically the consequences the increasing reference to CSR in investment dispute settlement has. While, for example, the increasing use of the OECD Guidelines in arbitrations may substitute for the weak compliance mechanism under the Guidelines themselves, and could thus harden the Guidelines’ legal effect, placing their interpretation in the hands of party-appointed arbitrators may also change the Guidelines’ epistemic context and legal effects. The paper therefore also calls for a deeper engagement of the communities of investment lawyers and lawyers working in CSR in order to produce better-suited results in the emerging field of business and human rights.

Keywords: international investment law, international investment agreements, human rights, OECD Guidelines on Multinational Enterprises, corporate social responsibility, business and human rights

JEL Classification: K33

Suggested Citation

Schill, Stephan W., The OECD Guidelines for Multinational Enterprises and International Investment Agreements: Converging Universes (2018). published in Nicola Bonucci and Catherine Kessedjian (eds), 40 ans des lignes directrices de l’OCDE pour les entreprises mulinationales/40 Years of the OECD Guidelines for Multinational Enterprises (Pedone 2018) 63-78; Amsterdam Law School Research Paper No. 2019-18; Amsterdam Center for International Law No. 2019-07. Available at SSRN: https://ssrn.com/abstract=3506733 or http://dx.doi.org/10.2139/ssrn.3506733

Stephan W. Schill (Contact Author)

University of Amsterdam ( email )

Spui 21
Amsterdam, 1018 WB
Netherlands

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