Green Shoots in a Barren World: Recent Developments in International Investment Law
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Green Shoots in a Barren World: Recent Developments in International Investment Law Jason Rudall1
© The Author(s) 2020
Abstract This article begins from the observation that there have been a number of developments in international investment law-making and the jurisprudence of investorstate dispute settlement tribunals involving the protection of the environment and human rights. As for law-making, this article explores the evolving substance of international investment agreements as well as regulatory developments in the area of business and human rights that are of relevance to the international investment law framework. The article then turns to consider the emergence of human rights and environmental issues in the recent jurisprudence of investment tribunals and appraises how such issues have been dealt with—both in procedural and substantive terms—by arbitral tribunals. Finally, it questions whether investment tribunals are appropriate venues for the adjudication of non-investment matters like environmental and human rights issues, and highlights best practices that could be adopted by future tribunals. Overall, the article concludes that the piecemeal approach adopted to date provides a step in the right direction but is ultimately inadequate given the multiple challenges that our planet currently faces. Rather, a more ambitious agenda that is concerned with promoting good investment, as opposed to mitigating bad practices, should be pursued. Keywords International investment law · Environment · Human rights · Treaties · Investor-state dispute settlement
* Jason Rudall [email protected] 1
Public International Law, Grotius Centre for International Legal Studies, Leiden University, Leiden, The Netherlands
123Vol.:(0123456789)
J. Rudall
What’s the Use of a House if you Haven’t Got a Tolerable Planet to Put it On?1
1 Introduction This article appraises several recent developments in the area of foreign investment protection that suggest a greater sensitivity to environmental concerns and human rights. Classically, the latter non-economic interests have been perceived as irreconcilable with the promotion of foreign direct investment.2 However, this perception appears to be evolving as incremental changes in investment law-making and the adjudication of investor-state disputes have given greater weight to environmental and human rights issues.3 This resonates with a broader recognition at the international level that international corporations have a role to play in averting environmental damage and ensuring human rights are respected, evidenced not least in the United Nations Guiding Principles (UNGPs) and Sustainable Development Goals (SDGs).4 As such, these recent innovations in the international investment law framework are to be welcomed. That said, there is a danger that piecemeal development will result in too little, too late. In several respects, the developments examined in this article fall short of what is required given the threat that corporate activity can pose to the envir
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