Document Type
Article
Abstract
This article focuses on the proposal to adapt international arbitration to business disputes involving human rights. The Business and Human Rights arbitration (BHR arbitration) proposal seeks to give local communities who are victims of multinational corporations’ human rights and environmental abuses access to justice in a specialized international BHR arbitration tribunal. Through a comparison between investor-state arbitration (ISA) and BHR arbitration, this article contends that it would be more efficient to reform ISA than to create a BHR arbitration tribunal. Reforming ISA would avoid the possible parallel arbitration systems that may arise from the duplication of international governance efforts. It would also reduce local communities’ need to resort to transnational litigation, which is procedurally complex and often unsuccessful. Therefore, the possibility of ISA reform makes the BHR arbitration proposal superfluous or, at best, limited in its potential application. Creating a new arbitral structure that is untested and fraught with procedural and substantive complexities may not be worth the trouble. Considering the parallels between the ISA and proposed BHR arbitration, and the prospect of creating a one-stop shop for business and human rights abuse, this article suggests that BHR arbitration is an unnecessary governance effort in international arbitration and a distraction from necessary ISA reform.
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Citation Information
Ogunranti, Akinwumi.
"Between the Devil and the Deep Blue Sea—Towards Access to Justice for Local Communities in Investor-state Arbitration or Business and Human Rights Arbitration."
Osgoode Hall Law Journal
59.3 (2022)
: 707-765.
DOI: https://doi.org/10.60082/2817-5069.3815
https://digitalcommons.osgoode.yorku.ca/ohlj/vol59/iss3/5
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Participation in this sense does not need to involve formal participation or legal participatory status in the manner that such status applies to states and investors. It is sufficient that a tribunal may be willing or unwilling to consider the activities of actors that a party to a dispute settlement proceeding pleads, because of the actors' identity. Tribunals' constructions of these activities have significant impacts not only on activist groups, but also on the state parties or foreign investors that plead the incidences of resistance.
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39. See Denis Côté, "Whose rights are we protecting? Ensuring the primacy of human rights over investors protections in the international legal regime" (March 2016) at 23, online
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40. See Roderick Abbott, Fredrik Erixon & Martina Francesca Ferracane, "Demystifying Investor-State Dispute Settlement (ISDS)" (2014) ECIPE Occasional Paper (5th) at 17. This proposal is criticized for creating an imbalanced or selective treatment between developed and developing countries. See Hugo Perezcano, "RISKS OF A SELECTIVE APPROACH TO INVESTOR-STATE ARBITRATION" (13 April 2016) online (pdf): Centre for International Governance Innovation
no.3.pdf> [perma.cc/K8TJ-7YTX]; Armand de Mestral, ed, Second Thoughts: Investor-State Arbitration between Developed Democracies (CIGI Press, 2017).
41. George Kahale III, "The Inaugural Brooklyn Lecture on International Business Law: ISDS: The Wild, Wild West of International Practice" (2018) 44 Brook J Intl L 1 at 10.
42. It has been noted that "investor-state arbitration may change, and is changing, but is unlikely to disappear anytime soon." See Taylor St John, The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences (Oxford University Press, 2018) at 250.
43. Stakeholders include MNCs, states, international organizations, local communities, and non-governmental organizations. I use the term "regime" in the same way that Steven Ratner defines it: "A self-identified field of international law comprising norms to regulate a certain type of conduct and institutions to make decisions within it." See Steven Ratner, "REGULATORY TAKINGS IN INSTITUTIONAL CONTEXT: BEYOND THE FEAR OF FRAGMENTED INTERNATIONAL LAW" (2008) 102 AJIL 475 at 485. https://doi.org/10.2307/20456640
44. See Eric De Brabandere, Investment Treaty Arbitration as Public International Law (Cambridge University Press, 2014) at 20. https://doi.org/10.1017/CBO9781107589216
45. Ibid. It has been noted that "it is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels." Sachet Singh & Sooraj Sharma, supra note 32 at 90, citing Mavrommatis Palestine Concessions (Greece v UK) (1924), PCIJ (Ser B) No 3 at para 21 [Mavrommatis].
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LAW TRENDS AND AFRICA'S DILEMMAS IN THE DRAFT PAN-AFRICAN INVESTMENT CODE" (2018) 50 Geo Wash Intl L Rev 523 at 526 ("International investment law [IIL] comes with a very old and lingering historical baggage that continues to engender doctrinal confusion and outright suspicion...[IIL] is not made by Africa, it was made for Africa as a replacement for colonial rules for the protection of capital" [emphasis in original]).
53. See M Sornarajah, The International Law on Foreign Investment, 3rd ed (Cambridge University Press, 2010). At inception, de Mestral notes, "very few BITs were concluded between developed states." de Mestral, supra note 35 at 3. See also Andrew Newcombe & Lluís Paradell, Law and Practice of Investment Treaties: Standards of Treatment (Kluwer Law International, 2009) at 43 (noting that "[a] characteristic of BITs during this period was the asymmetrical economic and political relationship that existed between capital exporting and importing states. Although the obligations on the state parties to BITs were formally reciprocal, BITs were developed by capital exporting states to protect the economic interests of their nationals abroad." I use the terms "global north" (developed countries) and "global south" (developing countries) as defined by Lemuel Odeh. See Lemuel Ekedegwa Odeh, "A COMPARATIVE ANALYSIS OF GLOBAL NORTH AND GLOBAL SOUTH ECONOMIES" (2010) 12 J Sustainable Development in Africa 338 at 338:
While Global North countries are wealthy, technologically advanced, politically stable and aging as their societies tend towards zero population growth the opposite is the case with Global South countries. While Global South countries are agrarian based, dependent economically and politically on the Global North, the Global North has continued to dominate and direct the global south in international trade and politics.
54. Kenneth J Vandevelde, "A Brief History of International Investment Agreements" in Karl P Sauvant & Lisa E Sachs, eds, The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows (Oxford University Press, 2009) 4 at 5. Most treaties contain standard clauses, which explain the scope of investment, standards of treatment for investment, the scope of expropriation, and dispute settlement procedures. See Salacuse, supra note 47 at 432. https://doi.org/10.1093/acprof:oso/9780195388534.003.0001
55. Joshua Karton, "Choice of Law and Interpretive Authority in Investor-State Arbitration"
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56. See Sergio Puig, "NO RIGHT WITHOUT A REMEDY: FOUNDATIONS OF INVESTOR-STATE ARBITRATION" (2014) 35 U Pa J Intl L 829 at 843-46.
57. See Yaraslau Kryvoi, "Counterclaims in Investor-State Arbitration" (2012) 21 Minn J
Intl L 216; Pierre Lalive & Laura Halonen, "On the Availability of Counterclaims in Investment Treaty Arbitration" (2011) CYIL 141. See also Brower & Blanchard, supra note 36 at 713-15.
58. See Kendall Grant, "ICSID's Reinforcement?: UNASUR and the Rise of a Hybrid Regime for International Investment Arbitration" (2015) 52 Osgoode Hall LJ 1115 at 1120 https://doi.org/10.60082/2817-5069.2964
Susan L Karamanian, "Overstating the Americanization of International Arbitration: Lessons from ICSID" (2003) 19 Ohio St J on Disp Resol 5 at 9.
59. See generally Stephen E Blythe, "The Advantages of Investor-State Arbitration as a Dispute Resolution Mechanism in Bilateral Investment Treaties" (2013) 47 Intl Law 273.
60. Beth A Simmons, "BARGAINING OVER BITS, ARBITRATING AWARDS: The Regime for Protection and Promotion of International Investment" (2014) 66 World Pol 12 at 17. https://doi.org/10.1017/S0043887113000312
61. See Andrea K Bjorklund, "The Emerging Civilization of Investment Arbitration" (2009) 113 Penn St L Rev 1269 at 1271.
62. See Antonio R Parra, "ICSID AND THE RISE OF BILATERAL INVESTMENT TREATIES: WILL ICSID BE THE LEADING ARBITRATION INSTITUTION IN THE EARLY 21st CENTURY?" (2000) 94 Soc'y Intl L Proc 41 at 41.
63. Ibid at 42.
64. See generally Antonio R Parra, The History of ICSID, 2nd ed (Oxford University Press, 2017). https://doi.org/10.1093/law/9780198767466.001.0001
65. See "Other Alternative Dispute Resolution Mechanisms," online: ICSID [perma.cc/RNA8-JBGS].
66. Bjorklund, supra note 61 at 1271.
67. See Tomoko Ishikawa, "THIRD PARTY PARTICIPATION IN INVESTMENT TREATY ARBITRATION" (2010) 59 Intl & Comp LQ 373 at 374-75. https://doi.org/10.1017/S0020589310000059
68. See generally Gus Van Harten, Investment Treaty Arbitration and Public Law (Oxford University Press, 2007); Stephan W Schill, "Enhancing International Investment Law's Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach" (2011) 52 Va J Intl L 57; Stephan W Schill, ed, International Investment Law and Comparative Public Law (Oxford University Press, 2010).
69. See generally Zachary Douglas, "The Hybrid Foundations of Investment Treaty Arbitration" (2003) 74 British Yearbook Intl L 151 https://doi.org/10.1093/bybil/74.1.151
Bernado M Cremades & David JA Caims, "The Brave New World of Global Arbitration" (2002) 3 J World Investment 173. https://doi.org/10.1163/221190002X00085
70. See Hendrik Hugh Angus Van Harten, The Emerging System of International Investment Arbitration (PHD Thesis, London School of Economics, 2005) [unpublished] at 10-11.
71. See Choudhury, supra note 33 at 787.
72. See James Allsop, "Commercial and Investor-State Arbitration: The Importance of Recognising their Differences" (Opening Keynote Address delivered at The ICCA Congress, Sydney, 16 April 2018) [unpublished] at para 21.
73. See "Human rights must be integrated into international investment agreements" (14 November 2016), online (pdf): Business and Human Rights Resource Center [perma.cc/3DF2-T4WD] ("[T]he current international investment system gives rights to multinational corporations while doing nothing to protect the rights of people affected by foreign investment to access effective remedy. It does not sufficiently protect governments' space to pursue sustainable development policies from investors' challenges").
74. De Brabandere, supra note 44 at 51.
75. Kinda Mohamadieh, "The Future of Investor-State Dispute Settlement Deliberated at UNCITRAL: Unveiling a Dichotomy between Reforming and Consolidating the Current Regime" (March 2019) at 2, online (pdf): The South Centre
wp-content/uploads/2019/03/IPB16_The-Future-of-ISDS-Deliberated-at-UNCITRAL_ EN.pdf> [perma.cc/X8QV-SM3C].
76. It should, however, be noted that some BITs are beginning to recognize obligations for investors, although these remain limited. For example, article 7 of the 2019 Netherlands Model bilateral investment treaty (BIT) provides a specific requirement that "[i]nvestors and their investments shall comply with domestic laws and regulations of the host state, including laws and regulations on human rights." See "Netherlands model Investment Agreement" (22 March 2019), online (pdf): UNCTAD [perma.cc/6JL3-6YE9].
77. See Augustus A Agyemang, "AFRICAN COURTS, THE SETTLEMENT OF INVESTMENT DISPUTES AND THE ENFORCEMENT OF AWARDS" (1989) 33 https://doi.org/10.1017/S0021855300007968
J Afr L 31 at 42; St John, supra note 42 at 255; Dolzer & Schreuer, supra note 35 at 20; Salacuse, supra note 47 a
