Session 5 Flashcards
Economic law: How do investment and trade agreements relate to human rights? (9 cards)
What is the asymmetry in the relationship between investors and host states?
Imbalance between rights and responsibilities of investors: Investor rights are strongly protected, often with enforceable mechanisms, while their obligations towards host states, workers, or the environment are weak, vague, voluntary, or difficult to enforce.
What is a BIT?
An agreement between two countries that aims to promote and protect investment made by nationals and companies of one country in the other’s territory, providing investors with certain rights and protections.
How are investors’ rights protected in BITs?
Through internationala rbitration
What (legal) obligations do investors have in terms of HR in host states?
Usually no legal obligations which is the crux of the issue. Those entering into investment agreements can of course opt to (legally) bind themselves to such obligations, but that is does not seem to be the case at least in terms of legally binding obligations RE HR.
What criticisms do BITs face?
No references to HR in most BITs, so no legal responsibilities of investors for HR impacts under BITs.
Open-ended notions in BIT (‘fair and equitable treatment’, ‘indirect’ expropriation).
Arbitration system in need of improvement (ongoing: EC moving from
ad-hoc arbitration to a permanent court).
Individuals (human rights holders) don’t have standing before arbitral tribunals.
How is the landscape of BITs changing in relation to B&HR?
There’s a growing number of references to corporate responsibilities (soft law), but investment law remains state-centric, and the structural imbalance of investor rights and human rights continues.
How are states aiming to regulate BITs?
States remain the right to regulate laws in order to protect and implement
HR and by commitments not to weaken HR in order to increase competitiveness.
What type of clauses are increasingly found in FTAs?
Social clauses & Human rights clauses
What is the connection/ commonality between FTAs and DD laws?
Both are trade instruments, FTAs on a bilateral level and DD laws (within the EU) on a unilateral level.
