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Investor-State Arbitration and Human Rights

Filip Balcerzak

ISBN13: 9789004338999
Published: September 2017
Publisher: Brill Nijhoff
Country of Publication: The Netherlands
Format: Hardback
Price: £160.00



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In Investor-State Arbitration and Human Rights Filip Balcerzak examines the interrelations between human rights and international investment law.

The work discusses whether, and how, human rights arguments may be presented in the course of arbitral proceedings based on investment treaties.

The work identifies three model situations, derived from existing arbitral jurisprudence, which provide the backdrop and methodological tool underpinning the book’s legal analysis. The work considers the perspectives of both host states and investors and analyzes all stages of arbitral proceedings – jurisdiction, admissibility, merits, compensation and costs – to determine the potential impact of human rights on the outcome of proceedings.

Subjects:
Human Rights and Civil Liberties, Arbitration and Alternative Dispute Resolution
Contents:
Acknowledgements
Introduction

1. Model Situations When Human Rights are Relevant for Investor – State Arbitration
1 Identification of Model Situations
2 First Model Situation – Host States Invoking Human Rights in the Absence of Violations Having been Committed by Investors
i Invocations of the General Notion of Human Rights
ii Invocations of Specific Human Rights
iii Human Rights Referred to by Arbitral Tribunals
3 Second Model Situation – Host States Invoking Human Rights Where Violations Have been Committed by Investors
4 Third Model Situation – Investors Invoking Human Rights
5 Interrelations between the Model Situations

2. Human Rights Context of Jurisdiction and Admissibility in Investor – State Arbitration
1 Scope of Jurisdiction of Tribunals in Investor – State Arbitration and Human Rights
i General Remarks on the Grounds of Jurisdiction of Arbitral Tribunals
ii Characteristics of the Consent to Arbitrate Given in Investment Treaties
iii Types of Jurisdictional Limits and Their Possible Consequences
iv Types of Jurisdiction Clauses Typically Present in Investment Treaties
v Scope of Arbitral Tribunals’ Jurisdiction in Investor – State Arbitration and Human Rights Invoked by Investors
vi Scope of Arbitral Tribunals’ Jurisdiction in Investor – State Arbitration and Human Rights Invoked by Host States
2 Admissibility of Claims in the Light of Possible Human Rights Violations Committed by Investors and the Requirement to Undertake Investments in Accordance with Local Law
i Distinction between Jurisdiction and Admissibility in International Investment Law
ii “In Accordance with Local Laws” Requirement
iii Non-explicit “in Accordance with Local Laws” Requirement
iv Admissibility of and Jurisdiction Over Claims Concerning Investments Made Contrary to Host States’ Laws Concerning Human Rights

3. The Impact of Human Rights on the Merits of Investor – State Arbitration
1 Influence of Human Rights on the Interpretation of the Provisions of Investment Treaties
i General Rules of Treaty Interpretation
ii Fair and Equitable Treatment
iii Expropriation
2 Possibility of Invoking Investors’ Human Rights in the Course of Arbitral Proceedings

4. Compensation and Costs in Investor – State Arbitration and the Issue of Human Rights
1 Impact of Human Rights on the Level of Compensation Awarded in Investor – State Arbitration
i General Remarks
ii Principles Governing Compensation in Investor – State Arbitration
iii Concept of Contributory Negligence
iv Contributory Negligence and Human Rights Violations Committed by Investors
v Reduction of Compensation and Remaining Human Rights Concerns
vi Concept of Moral Damages
vii Moral Damages and Violations of Investors’ Human Rights
2 Human Rights Considerations as a Justification to Shift Costs of the Proceedings
i General Remarks
ii Rules Concerning the Burden of Costs

Conclusions
Bibliography
Index