The impact of investor-State dispute settlements: report

Background

According to the World Investment Report 2015, growing unease with the current functioning of the global international investment agreement regime, together with today’s sustainable development imperative, the greater role of Governments in the economy and the evolution of the investment landscape, has triggered a move towards reforming international investment rule seeking to make it better suited for today’s policy challenges. As a result, the regime is going through a period of reflection, review and revision. The question is not about whether to reform or not, but about the “what”, “how” and “extent” of such reform.

Summary

The present report, the fourth by the Independent Expert to the General Assembly, should be read in conjunction with his report submitted to the upcoming thirtieth session of the Human Rights Council (A/HRC/30/44), in which he analyses the operation of international investment agreements. The present report focuses on the investor-State dispute settlements that accompanies many international investment agreements and their adverse impacts on a democratic and equitable international order.

The added value of the report lies in the identification of threats to the democratic and equitable international order posed by international investment agreements that are not anchored in human rights and by investor-State dispute settlement arbitration regimes because they reduce the State's regulatory space and do not oblige the arbitrators to give priority to human rights treaty norms.

It underlines the urgency of crafting future agreements in a way that prevents the abuses of the past and calls for a revamping of the existing 3,200 international investment agreements, more than 1,500 of which are due to expire.

The Independent Expert provides a fresh look from an independent perspective that places human rights at its centre and highlights pertinent provisions of the Vienna Convention on the Law of Treaties with a view to the revision or termination of some of these agreements and to the abolishment of investor-State dispute settlement as contra bonos mores and incompatible with provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.