Since the rise of international investment law and arbitration in the 1990s, human rights scholars and practitioners have criticized the impact of investment law upon the full realization of human rights. In the last decade, the debate also gained momentum in the investment regime, triggering new developments in arbitration and treaty-making which are aimed at balancing investment law and human rights concerns. An increasing number of treaties and arbitral awards include human rights language, while the realignment of investment activity with human rights is also central to the business and human rights discourse.
This project investigates the role of human rights in investment law from an empirical, critical, and historical perspective. First, it examines the rise of human rights references and human rights languages in newly signed investment treaties arbitral awards. This highlighted how state parties, as well as investors, relied on human rights in investment disputes. Moreover, new procedural tools such as amicus curiae and host state counterclaims also allow for better inclusion of human rights by affected communities. Secondly, this project critically reflects on those developments, in particular the potentials and risks of ‘human rights mainstreaming’ in investment law and arbitration as well as the limitations of ongoing reform processes. Thirdly, it also traces the historical development of the nexus between investment protection and human rights, for instance, the transfer of a corporate ‘human’ right to property from the ECHR to investment arbitration.