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Informal instruments to impose human rights obligations on foreign investors: An emerging practice of legality?

Published online by Cambridge University Press:  02 December 2020

Jean-Michel Marcoux
Jean-Michel Marcoux*
Affiliation:
McGill University, Faculty of Law, 3644, Peel Street, Montreal (Quebec), H3A 1W9, Canada Email: jean-michel.marcoux@mail.mcgill.ca
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Abstract

In parallel to the negotiation of international investment agreements to protect foreign investment, intergovernmental organizations have deployed considerable efforts to adopt and implement standards of conduct for business enterprises operating abroad. Despite their informal character under international law, these instruments are increasingly mentioned in international investment agreements and investment arbitration. How can references to informal instruments elaborated by intergovernmental organizations contribute to the imposition of human rights obligations on foreign investors in international investment law? Drawing upon the interactional theory developed by Jutta Brunnée and Stephen J. Toope, this article considers these references as a practice that has the potential to strengthen the normative pull towards compliance with human rights norms. In addition to emphasizing the role of international investment law as a relevant forum to develop a practice surrounding these informal instruments, it assesses whether the use of these instruments by members of a community of practice is intended to establish a genuine sense of obligation and to impose human rights obligations on foreign investors. Even if some instances evidence a practice that strengthens such a sense of obligation, most of the references included in international investment agreements and investment arbitration do not render a practice of legality.

Keywords

human rightsinteractional theoryintergovernmental organizationsinternational investment agreementsinvestment arbitration
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 34 , Issue 1 , March 2021 , pp. 109 - 126
Copyright
© The Author(s), 2020. Published by Cambridge University Press

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Footnotes

*

The author is grateful to Professor Anne van Aaken and all the participants in the workshop entitled The Legitimate Role for Investment Law and Arbitration in Protecting Human Rights (Oslo, September 2019) for highly valuable comments. The author also thanks the Editor-in-Chief and three anonymous reviewers for their thoughtful comments on a previous version of the manuscript. Finally, the author acknowledges the financial support of the Postdoctoral Fellowship of the Social Sciences and Humanities Research Council of Canada.

References

1 See, e.g., C. Reiner and C. Schreuer, ‘Human Rights and International Investment Arbitration’, in P.-M. Dupuy, F. Francioni and E.-U. Petersmann (eds.), Human Rights in International Investment Law and Arbitration (2009), 82, at 89–90; M. Hirsch, ‘Investment Tribunals and Human Rights: Divergent Paths’, in Dupuy, Francioni and Petersmann, ibid., 97, at 106–13; J. Wouters and N. Hachez, ‘When Rules and Values Collide: How Can a Balanced Application of Investor Protection Provisions and Human Rights Be Ensured’, (2009) 3 HR&ILD 301, at 308–40; A. Al Faruque, ‘Mapping the Relationship between Investment Protection and Human Rights’, (2010) 11 JWIT 539, at 248–9; J. D. Taillant and J. Bonnitcha, ‘International Investment Law and Human Rights’, in M.-C. Cordonier Segger, M. W. Gehring and A. Newcombe (eds.), Sustainable Development in World Investment (2011), 57, at 75–9; M. Hirsch, ‘The Sociology of International Investment Law’, in Z. Douglas, J. Pauwelyn and J. E. Viñuales (eds.), The Foundations of International Investment Law: Bringing Theory into Practice (2013), 143, at 148–58; M. Sornarajah, Resistance and Change in the International Law on Foreign Investment (2015), 318–24; S. Joseph, ‘Human Rights and International Economic Law’, in M. Bungenberg et al. (eds.), European Yearbook of International Economic Law 2016 (2016), 462, at 476–81; U. Kriebaum, ‘Human Rights and International Investment Law’, in Y. Radi (ed.), Research Handbook on Human Rights and Investment (2019), 13, at 29–39. Contra, J. D. Fry, ‘International Human Rights Law in Investment Arbitration: Evidence of International Law’s Unity’, (2007) 18 DJCIL 77.

2 See, e.g., Wouters and Hachez, ibid., at 340–3; P. Dumberry and G. Dumas-Aubin, ‘How to Impose Human Rights Obligations on Corporations under Investment Treaties? Pragmatic Guidelines for the Amendment of BITs’, in K. P. Sauvant (ed.), Yearbook on International Investment Law and Policy 2011/2012 (2012), 569, at 573–7; P. Dumberry and G. Dumas-Aubin, ‘When and How Allegations of Human Rights Violations can be Raised in Investor-State Arbitration’, (2012) 13 JWIT 349, at 360–8; A. Kulick, Global Public Interest in International Investment Law (2012), 276–304; S. L. Karamanian, ‘The Place of Human Rights in Investor-State Arbitration’, (2013) 17 Lewis & Clark Law Review 423, at 435–6; P. Dumberry, ‘Corporate Investors’ International Legal Personality and their Accountability for Human Rights Violations under IIAs’, in A. de Mestral and C. Lévesque (eds.), Improving International Investment Agreements (2013), 179, at 188–90; A. Espinoza González, ‘The Assessment of Corporate Conduct towards Human Rights in Investor-State Disputes Settlement: Why We Should (and Can) Mix the Sheep and the Goats’, in J. L. Černič and T. Van Ho (eds.), Human Rights and Business: Direct Corporate Accountability for Human Rights (2015), 367, at 376–82; Kriebaum, ibid., at 22–9; F. Baetens, ‘Invoking Human Rights: A Useful Line of Attack or a Defense Tool for States in Investor-State Dispute Settlement?’, in M. Scheinin (ed.), Human Rights Norms in ‘Other’ International Courts (2019), 227, at 235–48.

3 See P. Muchlinski, ‘Corporate Social Responsibility’, in P. Muchlinski, F. Ortino and C. Schreuer (eds.), The Oxford Handbook of International Investment Law (2008), 638, at 682; Al Faruque, supra note 1, at 542–7; Dumberry and Dumas-Aubin, ‘How to Impose’, supra note 2, at 569.

4 These instruments have been analysed in the literature on international investment law. See, e.g., P. T. Muchlinski, Multinational Enterprises & the Law (2008), 473–536; Muchlinski, ‘Corporate Social Responsibility’, ibid., at 645–62; N. L. Bridgeman and D. B. Hunter, ‘Narrowing the Accountability Gap: Toward a New Foreign Investor Accountability Mechanism’, (2008) 20 Georgetown International Environmental Law Review 187, at 207–16; R. J. Anderson, ‘Toward Global Corporate Citizenship: Reframing Foreign Direct Investment Law’, (2009) 18 Michigan State International Law Review 1, at 15–18; Taillant and Bonnitcha, supra note 1, at 74; E. van der Zee, ‘Incorporating the OECD Guidelines in International Investment Agreements: Turning a Soft Law Obligation into Hard Law?’, (2013) 40 Legal Issues of Economic Integration 33, at 37–40; K. Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (2013), 227–30; M. Jacob and S. W. Schill, ‘Going Soft: Towards a New Age of Soft Law in International Investment Law?’, (2014) 8 WAMR 1, at 17–33; B. Choudhury, ‘Spinning Straw into Gold: Incorporating the Business and Human Rights Agenda into International Investment Agreements’, (2017) 38 University of Pennsylvania Journal of International Law 425, at 437–42; J. E. Viñuales, ‘Investor Diligence in Investment Arbitration: Source and Arguments’, (2017) 32 ICSID Review 346, at 349–50.

5 Declaration on International Investment and Multinational Enterprises, 21 June 1976, OECD Doc. No C(76)99/FINAL (1976), Ann. 1. The revised version adopted in 2011 includes an entire chapter on human rights. See Declaration on International Investment and Multinational Enterprises, 25 May 2011, OECD Doc. No C/MIN(2011)11/FINAL (2011), Ann. 1, Ch. IV.

6 Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, November 1977, 17 ILM 422. For the most recent version, see Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, March 2017, available at www.ilo.org/empent/Publications/WCMS_094386/lang--en/index.htm (accessed 31 May 2020).

7 UN Global Compact, available at www.unglobalcompact.org/what-is-gc/mission/principles (accessed 31 May 2020).

8 Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, UN Doc. A/HRC/17/31 (2011).

9 International Finance Corporation’s Performance Standards on Social & Environmental Sustainability, 30 April 2006, available at www.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/Sustainability-At-IFC/Policies-Standards/Performance-Standards (accessed 31 May 2020). For the most recent version, see International Finance Corporation’s Performance Standards on Environmental and Social Sustainability, 1 January 2012, available at www.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/Sustainability-At-IFC/Policies-Standards/Performance-Standards (accessed 31 May 2020).

10 Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, UN Doc. A/HRC/RES/26/9 (2014), para. 1. Since the establishment of the working group, a revised draft of a legally binding instrument on business and human rights has been released ahead of its fifth session, which was held in October 2019. See United Nations Human Rights Council, Fifth Session of the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, available at www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Session5/Pages/Session5.aspx (accessed 31 May 2020).

11 See, e.g., P. Simons and A. Macklin, The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage (2014), at 93–122, 130–42; K. P. Sauvant, ‘The Negotiations of the United Nations Code of Conduct on Transnational Corporations: Experience and Lessons Learned’, (2015) 16 JWIT 11, at 27–37, 68–71; J. Nolan, ‘Mapping the Movement: The Business and Human Rights Regulatory Framework’, in D. Baumann-Pauly and J. Nolan (eds.), Business and Human Rights: From Principles to Practice (2016), 32 at 38–44. Some even argue that a more appropriate avenue to address human rights violations lies in domestic legislation. See, e.g., M. Krajewsli, ‘A Nightmare or a Noble Dream? Establishing Investor Obligations Through Treaty-Making and Treaty Application’, (2020) 5 Business and Human Rights Journal 105, at 107 (‘[T]he way forward will require domestic legislation in host and home states to establish investor obligations which can be taken into account when interpreting existing treaty clauses. It is claimed that such an endeavour may be practically more viable and methodologically sounder than a pure reliance on international investment law’).

12 J. Pauwelyn, R. A. Wessel and J. Wouters, ‘An Introduction to Informal International Lawmaking’, in J. Pauwelyn, R. A. Wessel and J. Wouters (eds.), Informal International Lawmaking (2012), 1 at 2–3 (‘Firstly, in terms of output, international cooperation may be “informal” in the sense that it does not lead to a formal treaty or any other traditional source of international law, but rather to a normative output that is not part of the traditional sources of either domestic or international law. Secondly, in terms of process, international cooperation may be “informal” in the sense that it occurs in a loosely organized network or forum rather than a traditional treaty-based [intergovernmental organization] … Thirdly, in terms of actors involved, international cooperation may be informal in the sense that it does not engage traditional diplomatic actors’).

13 1945 Statute of the International Court of Justice, 59 US Stat 1031, Art. 38(1). Moreover, the informal nature of the outcome bears important implications regarding the potential use of these instruments to address human rights concerns in international investment law through the principle of systemic integration, as provided in Art. 31(3c) of the Vienna Convention on the Law of Treaties. On the principle of systemic integration see, e.g., C. McLachlan, ‘The Principle of Systemic Interpretation and Article 31(3c) of the Vienna Convention’, (2005) 54 ICLQ 279.

14 For example, the ILO Tripartite Declaration is the only declaration that has been adopted by the Governing Body rather than the Conference. See ILO Declarations, available at www.ilo.org/global/about-the-ilo/how-the-ilo-works/departments-and-offices/jur/legal-instruments/WCMS_428589/lang--en/index.htm (accessed 31 May 2020).

15 For example, even if the UN Guiding Principles were ultimately endorsed by the UN Human Rights Council, they result from the work of a group of experts led by the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises.

16 See, e.g., R. R. Baxter, ‘International Law in “Her Infinite Variety”’, (1980) 29 ICLQ 549; P. Weil, ‘Towards Relative Normativity in International Law?’, (1983) 77 AJIL 413; T. Gruchalla-Wesierski, ‘A Framework for Understanding Soft Law’, (1984) 30 McGill Law Journal 37, at 46; C. M. Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’, (1989) 38 ICLQ 850; J. Klabbers, ‘The Redundancy of Soft Law’, (1996) 65 Nordic Journal of International Law 167; A. E. Boyle, ‘Some Reflections on the Relationship of Treaties and Soft Law’, (1999) 48 ICLQ 901; H. Hillgenberg, ‘A Fresh Look at Soft Law’, (1999) 10 EJIL 499; K. W. Abbott and D. Snidal, ‘Hard and Soft Law in International Governance’, (2000) 54 International Organization 421; D. Shelton, ‘Introduction: Law, Non-Law and the Problem of “Soft-Law”’, in D. Shelton (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (2000), 1; K. Raustiala, ‘Form and Substance in International Agreements’, (2005) 99 AJIL 581; M. Geboye Desta, ‘Soft Law in International Law: An Overview’, in A. K. Bjorklund and A. Reinisch (eds.), International Investment Law and Soft Law (2012), 39; G. C. Shaffer and M. A. Pollack, ‘Hard and Soft Law’, in J. L. Dunoff and M. A. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (2013), 197.

17 See, e.g., Hillgenberg, ibid., at 500 (‘There is quite clearly a broad area of situations in which states enter into commitments without concluding a formal treaty under international law. I will refer to these arrangements as “non-treaty agreements”, although I find the term “soft law”, attributed to McNair, very revealing precisely because it is a contradiction of terms.’).

18 See, e.g., Boyle, supra note 16, at 908–9 (‘[S]ome treaties are soft in the sense that they impose no real obligations on the parties. Though formally binding, the vagueness, indeterminacy, or generality of their provisions may deprive them of the character of “hard law” in any meaningful sense’).

19 Abbott and Snidal, supra note 16, at 421.

20 J. Bonnitcha, L. N. S. Poulsen and M. Waibel, The Political Economy of the Investment Treaty Regime (2017), 14–15.

21 See A. K. Bjorklund, ‘Assessing the Effectiveness of Soft Law Instruments in International Investment Law’, in A. K. Bjorklund and A. Reinisch (eds.), International Investment Law and Soft Law (2012), 51, at 56, 73; Jacob and Schill, supra note 4, at 15–33; S. W. Schill and K. Gülay, ‘Approaches to Foreign Direct Investment in Legal Research’, in M. Krajewski and R. T. Hoffmann (eds.), Research Handbook on Foreign Direct Investment (2019), 39, at 48. For an important exception see J. E. Alvarez, ‘Reviewing the Use of “Soft Law” in Investment Arbitration’, (2018) 7 EIAR 149.

22 J. Brunnée and S. J. Toope, Legitimacy and Legality in International Law: An Interactional Account (2010).

23 See, e.g., Taillant and Bonnitcha, supra note 1, at 59–60; J. Hepburn and V. Kuuya, ‘Corporate Social Responsibility and Investment Treaties’, in M.-C. Cordonier Segger, M. W. Gehring and A. Newcombe (eds.), Sustainable Development in World Investment (2011), 589, at 592–3; Dumberry and Dumas-Aubin, ‘How to Impose’, supra note 2, at 588; Dumberry and Dumas-Aubin, ‘When and How Allegations’, supra note 2, at 351, 355–8; E. De Brabandere, ‘Human Rights and International Investment Law’, in M. Krajewski and R. T. Hoffmann (eds.), Research Handbook on Foreign Direct Investment (2019), 619, at 623–4; E. De Brabandere and M. Hazelzet, ‘Corporate Responsibility and Human Rights: Navigating between International, Domestic and Self-Regulation’, in Y. Radi (ed.), Research Handbook on Human Rights and Investment (2019), 221, at 235–8.

24 Brunnée and Toope, supra note 22. For a useful summary see A. Bianchi, International Law Theories: An Inquiry into Difference Ways of Thinking (2016), 119–21.

25 Brunnée and Toope, ibid., at 8.

26 Ibid., at 15.

27 See ibid., at 26. These criteria of legality rely on the work of Lon L. Fuller. See L. L. Fuller, The Morality of Law (1969).

28 See Brunnée and Toope, ibid., at 54.

29 See E. Adler, Communitarian International Relations: The Epistemic Foundations of International Relations (2005), 15 (citing an electronic file by William M. Snyder entitled ‘Communities of Practice: Combining Organizational Learning and Strategy Insights to Create a Bridge to the 21st Century’).

30 Brunnée and Toope, Legitimacy and Legality, supra note 22, at 50–1; J. Brunnée and S. J. Toope, ‘International Law and the Practice of Legality: Stability and Change’, (2018) 49 Victoria University of Wellington Law Review 429, at 444.

31 Brunnée and Toope, ibid., at 51.

32 See ibid., at 51.

33 Ibid, at 47.

34 J. Brunnée and S. J. Toope, ‘Constructivism and International Law’, in J. L. Dunoff and M. A. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (2013), 119, at 119.

35 Ibid., at 120.

36 See, e.g., Shaffer and Pollack, supra note 16, at 199 (‘Institutionalist scholars in [international relations] nonetheless note that the language of “binding commitments” often matters because, through it, states signal the seriousness of their commitments, so that noncompliance can entail greater reputational costs and justify reprisals.’).

37 See J.-M. Marcoux, International Investment Law and Globalization: Foreign Investment, Responsibilities and Intergovernmental Organizations (2019), Chs. 4–7.

38 See, e.g., SADC Model Bilateral Investment Treaty Template with Commentary, 2012, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2875/download (accessed 31 May 2020); Model Text for the Indian Bilateral Investment Treaty, 2015, investmentpolicy.unctad.org/international-investment-agreements/treaty-files/3560/download (accessed 31 May 2020); 2016 Reciprocal Investment Promotion and Protection Agreement between the Government of the Kingdom of Morocco and the Government of the Federal Republic of Nigeria, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5409/download (accessed 31 May 2020); 2020 Investment Cooperation and Facilitation Treaty Between the Federative Republic of Brazil and the Republic of India, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5912/download (accessed 31 May 2020). See also Marcoux, ibid., at 23–35.

39 See, e.g., M. E. Footer, ‘BITs and Pieces: Social and Environmental Protection in the Regulation of Foreign Investment’, (2009) 18 Michigan State International Law Review 33, at 61–3; M. W. Sheffer, ‘Bilateral Investment Treaties: A Friend or Foe to Human Rights’, (2011) 39 Denver Journal of International Law and Policy 483; Hepburn and Kuuya, supra note 23, at 590–609; van der Zee, supra note 4, at 51–7; Dumberry, supra note 2, at 191; M. G. Gehring and A. Kent, ‘Sustainable Development and IIAs: From Objective to Practice’, in A. de Mestral and C. Lévesque (eds.), Improving International Investment Agreements (2013), 284, at 298–300; J. A. VanDuzer, P. Simons and G. Mayeda, Integrating Sustainable Development into International Investment Agreements: A Guide for Developing Country Negotiators (2013), at 300–1; Miles, supra note 4, at 367–8; K. Nowrot, ‘How to Include Environmental Protection, Human Rights and Sustainability in International Investment Law?’, (2014) 15 JWIT 612, at 639; J. Waleson, ‘Corporate Social Responsibility in EU Comprehensive Free Trade Agreements: Towards Sustainable Trade and Investment’, (2015) 42 Legal Issues of Economic Integration 143, at 163; Choudhury, supra note 4, at 465–75; Alvarez, supra note 21, at 170–1.

40 See UNCTAD, World Investment Report 2019: Special Economic Zones (2019), 99.

41 UNCTAD, Investment Policy Hub: Mapping of IIA Content, https://investmentpolicy.unctad.org/international-investment-agreements/iia-mapping (accessed 31 May 2020).

42 2014 Agreement between the Government of Canada and the Government of the Republic of Côte d’Ivoire for the Promotion and Protection of Investments, Can TS 2015 No 19, Art. 15(2) (emphasis added).

43 Agreement for the Promotion and Protection of Investment between the Republic of Austria and ___, 2008, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/4770/download (accessed 31 May 2020), Preamble. Similar language has been included in international investment agreements signed by Austria. See, e.g., 2013 Agreement for the Promotion and Protection of Investment between the Republic of Austria and the Federal Republic of Nigeria, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2972/download (accessed 31 May 2020), Preamble.

44 2018 Comprehensive Economic Partnership Agreement between the Republic of Indonesia and the EFTA States, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5802/download (accessed 31 May 2020), Preamble.

45 2016 Comprehensive Economic and Trade Agreement, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/3593/download (accessed 31 May 2020), Preamble. Similar language was also included in the model treaty elaborated by the Czech Republic. See Agreement between the Czech Republic and ___ for the Promotion and Reciprocal Protection of Investments, 2016, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5407/download (accessed 31 May 2020), Preamble.

46 2017 Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community, and their Member States, of the One Part, and of the Republic of Armenia, of the Other Part, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5669/download (accessed 31 May 2020), Art. 276(e) (emphasis added). See also A. Dimopoulos, ‘EC Free Trade Agreements: An Alternative Model for Addressing Human Rights in Foreign Investment Regulation and Dispute Settlement?’, in Dupuy, Francioni and Petersmann, supra note 1, 565, at 584.

47 2013 Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the United Arab Emirates, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/4774/download (accessed 31 May 2020), Art. 2(3).

48 Agreement between the Kingdom of Norway and ___ for the Promotion and Protection of Investments, 2015, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/3350/download (accessed 31 May 2020), Art. 31.

49 2018 United States–Mexico–Canada Agreement, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/6008/download (accessed 31 May 2020), Art. 14.17 (emphasis added). See also the 2018 Agreement for the Reciprocal Promotion and Protection of Investments between the Argentine Republic and the United Arab Emirates, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5761/download (accessed 31 May 2020), Art. 17.

50 See Wouters and Hachez, supra note 1, at 342–3; Hepburn and Kuuya, supra note 23, at 605–6; Dumberry and Dumas-Aubin, ‘How to Impose’, supra note 2, at 580; Dumberry, supra note 2, at 191; van der Zee, supra note 4, at 54–5; VanDuzer et al., supra note 39, at 308; Waleson, supra note 39, at 163; Viñuales, supra note 4, at 355; Y. Leshova, ‘The Accountability and Corporate Social Responsibility of Multinational Corporations for Transgressions in Host States through International Investment Law’, (2018) 14 Utrecht Law Review 40, at 55.

51 2018 Agreement between the Federative Republic of Brazil and the Federal Democratic Republic of Ethiopia on Investment Cooperation and Facilitation, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5717/download (accessed 31 May 2020), Art. 14.

52 2016 Morocco-Nigeria BIT, supra note 38, Art. 24(2). See also Leshova, supra note 50, at 46.

53 Agreement on the Reciprocal Promotion and Protection of Investments between ___ and the Kingdom of the Netherlands, 2019, investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5832/download (accessed 31 May 2020), Art. 7(2).

54 Ibid., Art. 23.

55 See, e.g., P.-M. Dupuy, ‘Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law’, in Dupuy, Francioni and Petersmann, supra note 1, 45, at 55–9; Reiner and Schreuer, supra note 1, at 83–4; J. D. Amado, J. Shaw Kern and M. Doe Rodriguez, Arbitrating the Conduct of International Investors (2017), 13–15; De Brabandere, supra note 23, at 627–9; Kriebaum, supra note 1, at 14.

56 South American Silver Limited v. Plurinational State of Bolivia, PCA Case No. 2013-15, Objections to Jurisdiction, Admissibility and Counter-Memorial on the Merits, 31 March 2015.

57 Ibid., para. 220.

58 Copper Mesa Mining Corporation v. Republic of Ecuador, PCA Case No. 2012-2, Award, 15 March 2016, para. 5.29.

59 Ibid., para. 5.29 (emphasis added).

60 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21, Respondent’s Second Post-Hearing Brief, 15 February 2017, para. 5.

61 Ibid., para. 5 (emphasis in the original).

62 Ibid., para. 5. The IFC Performance Standards were also considered by the Respondent State as a relevant international standard according to which a mining site should be developed in another case: See Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award, 4 April 2016, para. 382.

63 On the general role of amicus curiae regarding the integration of human rights concerns in international investment arbitration see J. Harrison, ‘Human Rights Arguments in Amicus Curiae Submissions: Promoting Social Justice’, in Dupuy, Francioni and Petersmann, supra note 1, at 396; Reiner and Schreuer, supra note 1, at 90–3.

64 Glamis Gold Ltd. v. United States of America, UNCITRAL, Non-Party Supplemental Submission, 16 October 2006, at 3.

65 Piero Foresti, Laura de Carli et al. v. Republic of South Africa, ICSID Case No. ARB(AF)/07/01, Petition for Limited Participation as Non-Disputing Parties, 17 July 2009, para. 4.2.

66 Ibid., para. 4.7.

67 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21, Amicus Curiae Brief Submitted by the Association of Human Rights and the Environment-Puno and Mr Carlos Lopez PhD, 9 May 2016.

68 Ibid., at 12–16.

69 Ibid., at 12 (emphasis added).

70 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21, Respondent’s Comments to the Third Party Submission from the Asociación de Derechos Humanos y Medio Ambiente-Puno, 18 August 2016, at 13.

71 Urbaser S.A. and Consorcio de Aguas Bilboa Bizkaia Bilboa Biskaia Ur Partzuergoa v. Argentine Republic, ICSID Case No. ARB/07/26, Award, 8 December 2016. See also E. De Brabandere, ‘Human Rights Counterclaims in Investment Treaty Arbitration’, (2017) RBDI 591, at 595–8; Alvarez, supra note 21, at 176–86; K. Crown and L. Lorenzoni Escobar, ‘International Corporate Obligations, Human Rights, and the Urbaser Standard: Breaking New Ground?’, (2018) 36 Boston University International Law Journal 87; Leshova, supra note 50, at 50–1; S. Steininger, ‘What’s Human Rights Got to Do with It? An Empirical Analysis of Human Rights References in Investment Arbitration’, (2018) 31 LJIL 33, at 53–4; De Brabandere, supra note 23, at 624–7; Kriebaum, supra note 1, at 26–9; Baetens, supra note 2, at 257–8.

72 Urbaser v. Argentina, Award, ibid., paras. 1161–2.

73 Ibid., paras. 1182–92.

74 Ibid., para. 1195.

75 Ibid., para. 1195.

76 Ibid., para. 1198.

77 Ibid., para. 1199 (emphasis added).

78 Ibid., para. 1210.

79 Ibid., para. 1221.

80 However, Alvarez suggests that the tribunal’s reliance on the UN Guiding Principles and the ILO Tripartite Declaration is inconsistent with the text of these instruments and their negotiating history. See Alvarez, supra note 21, at 180–1.

81 Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, Claimant Pac Rim Cayman LLC’s Response to the Amicus Curiae Submission Dated 25 July 2014, 2 September 2014, paras. 11–16.

82 Ibid., para. 14.

83 South American Silver Limited v. Plurinational State of Bolivia, PCA Case No. 2013-15, Claimant’s Reply to Respondent’s Counter-Memorial on the Merits and Response to Respondent’s Objections to Jurisdiction and Admissibility, 30 November 2015, para. 247.

84 Ibid., para. 247.

85 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21, Bear Creek’s Reply to the Amicus Curiae Submission of DHUMA and Dr. Lopez, 18 August 2016, para. 18.

86 Ibid., para. 18.

87 Gabriel Resources Ltd. And Gabriel Resources (Jersey) Ltd. v. Romania, ICSID Case No. ARB/15/31, Claimants’ Memorial, 30 June 2017, para. 66.

88 Ibid., para. 66 (emphasis added).

89 Gabriel Resources Ltd. And Gabriel Resources (Jersey) Ltd. v. Romania, ICSID Case No. ARB/15/31, Claimants’ Comments on Non-Disputing Parties’ Submission, 28 February 2019, para. 71.

90 South American Silver Limited v. Plurinational State of Bolivia, PCA Case No. 2013-15, Award, 22 November 2018, paras. 212–16.

91 Ibid., para. 217.

92 Copper Mesa v. Ecuador, Award, supra note 58, para. 6.97–6.102.

93 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21, Award, 30 November 2017, para. 256.