UNCLC Research Seminar - Investor obligations under investment treaties

Speaker: Dr Klara Polackova Van der Ploeg

Chair: Dr Matt Windsor

Abstract: 

Investment treaties have been subject to profound criticism over the past fifteen years or so. Critics have argued that these international instruments provide unduly privileged, overly broad legal protections to foreign investors, while they dramatically constrain or even disable public regulation and other governmental actions in the public interest, including for the protection of the environment and human rights. More recently, commentators—particularly those working in the field of business and human rights—have alleged that investment treaties outright encourage irresponsible conduct by foreign investors. 

States have adopted different strategies to respond to such criticism. One strategy, in particular among certain African and Latin American states, has been to incorporate within their new investment treaties provisions on investor obligations. In this way, states have sought to rekindle the relationship between investors and host states as well as to constrain detrimental investor conduct. However, confusion persists across legal communities as to both the legal possibility and the limits of imposing direct treaty obligations on investors, and the nature and extent of existing practice. 

This research seminar explores the phenomenon, critiques and prospects of direct international legal obligations under investment treaties as a means to regulate foreign investor conduct. After contrasting direct investor obligations with other regulatory avenues, the seminar examines the main arguments in favor and against the existence and/or utility of direct investor obligations as these appear in common/general international law, international investment law and business and human rights discourses. Do treaty-based investor obligations add value in regulating investor conduct, and in what corporate scenarios? Must investors consent to any such obligations? Do states have a duty to use investment treaties to regulate investor conduct directly? Or are investment treaties and investor-state dispute settlement expressions of a political economy that precludes such direct regulation?