Investor – State Arbitration and Human Rights

Filip Balcerzak, Ph.D., LL.M., member of the Warsaw (adwokat) and Madrid (abogado) Bar Associations, Senior Associate at SSW Law Firm in Poland. He holds an LL.M. degree from Canada (University of Ottawa, 2011) and a Ph.D. degree from Poland (Adam Mickiewicz University in Poznań, 2016).

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
  iii Decision on Costs and the Issue of Human Rights

Conclusions
Bibliography
Index