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Changes in the Balance of Rights and Obligations: Toward Investor Responsibilization

Published online by Cambridge University Press:  28 March 2018

Laurence Boisson de Chazournes
Laurence Boisson de Chazournes*
Affiliation:
Faculty of Law, University of Geneva.
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Extract

The classical approach to investment protection is that states have obligations and investors have rights. However, there are emerging trends in favor of a rebalancing of rights and obligations of states and investors. In the context of this recalibrated approach, more attention is given to the definition of substantive provisions, such as the fair and equitable treatment standard. There is also a move from investor protection to investor responsibilization. This emerging responsibilization trend can be observed, for example, in recent treaties negotiated on the African continent, and it is also making a foray into customary international law.

Type
Balancing Rights and Obligations of States and Investors
Information
Proceedings of the ASIL Annual Meeting , Volume 111 , 2017 , pp. 53 - 55
Copyright
Copyright © by The American Society of International Law 2018 

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References

1 This presentation draws on the research project on “Foreign Investment in Africa: Gaining Development Momentum,” funded by the Swiss National Science Foundation (SNSF) and described at www.investmentafrica.ch.

2 Agreement for Promotion, Protection and Guarantee of Investments Among Member States of the Organisation of the Islamic Conference, June 5, 1981, General Secretariat of the Organisation of the Islamic Conference, available at http://ww1.oic-oci.org/english/convenion/Agreement%20for%20Invest%20in%20OIC%20%20En.pdf.

3 Treaty Establishing the Common Market for Eastern and Southern Africa (COMESA), Art. 13, Nov. 5, 1993, 2314 UNTS 265 [hereinafter COMESA Investment Agreement].

4 South African Development Community (SADC), Model Bilateral Investment Treaty Template (July 2012), available at http://www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf [hereinafter SADC Model BIT].

5 Id.

6 Economic Commission for Africa, Draft Pan-African Investment Code, Art. 22-3, UN Doc. E/ECA/COE/35/18 (Mar. 26, 2016), available at http://repository.uneca.org/handle/10855/23009 [hereinafter Draft Pan-African Investment Code].

7 Supplementary Act A/SA.3/12/08 Adopting Community Rules on Investment and the Modalities for their Implementation with ECOWAS, Dec. 19, 2008.

8 Id. Art. 16.

9 Investment Cooperation and Facilitation Agreement Between the Federative Republic of Brazil and the Republic of Malawi, Art. 9, June 25, 2015, available at http://investmentpolicyhub.unctad.org/Download/TreatyFile/4715.

10 United Nations Human Rights Office of the High Commissioner, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (Mar. 21, 2011), available at https://business-humanrights.org/en/un-guiding-principles-on-business-and-human-rights-1.

11 Urbaser S.A., Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26, Award (Dec. 8, 2016).

12 Id., para. 1210.

13 COMESA Investment Agreement, Art. 28-9; SADC Model BIT, Art. 19-2; Draft Pan-African Investment Code, Art. 43-1.

14 SADC Model BIT, Art. 17-2.