ILO and investment law

While it is provocative that an Investment Court should systematically consider the human rights commitments of a State when an investment agreement is under debate, it should at least be clear to these courts that the achievement of human rights or the probability of violations of human rights by investment treaties may have negative consequences. Countries widely acknowledged under human rights legislation.

However, he also notes that “the fact that a private foreign investor as such cannot be directly imposed on the convention does not imply it is of any relevance or legal impact on them.” This statement is linked to a particular reference to the Urbaser tribunal. Sands further argues that in the instance at hand ILO convention was relevant and the investor had to comply with the conditions established in that convention. Furthermore, complying with these standards would have decreased its own damage.Sands acknowledges that States and not private parties must be required to implement the ILO Convention 169.

Since the investor did not get a “social licence,” it contributed to the failure of the project according to Sands, in contacting and engaging with the indigenous peuples affected by the project. Without depending on the Urbaser tribunal, Philippe Sands’s distinct view does not seem to share his major conclusion, namely that direct duties on the basis of the Human Rights Law might lie with private parties. Sands appears instead to imply that investors should, particularly in order to minimise the losses that may be suffered by investors, conform to human rights laws.This strategy looks less onerous to investors, while its practical consequences might prove more potent than Urbaser. It should be highlighted, however, that an evaluation of an investor’s behaviour would be more appropriate in the merits element of the prize, rather than in the computation of the damages involved.

However, the damages phase may be the sole chance in the absence of an investor’s enforceability responsibilities stated in the investment agreement to evaluate the investor’s behaviour.First, Philippe Sands’ method does not really need the respondent to submit a claim. Rather, the State’s allegation that the investor did not conform to international human rights law criteria would be sufficient. Second, taking into consideration an investor’s human rights abuses in assessing the damage amount might possibly have a greater effect on the investor than speculative conjecture as to the nature of its human rights duties. FTAs are undoubtedly the first important attempt to combine the regulation on foreign investment into human rights aspects.

Rarely, if ever, would the human rights standards require expropriation without compensation. The crucial question is thus how unintentional protection against FDI may be. Where States participate in investment arbitration, political judgments will undoubtedly be required from period to period. By changing their investment fields, investors will respond to such activity. The public censure of non-compliance with the rule of law should further discourage such conduct.


http://Wandahl Mouyal, L. (2016). International Investment Law and the Right to Regulate: A human rights perspective (1st ed.). Routledge.

http://Markus Krajewski, Human Rights in International Investment Law: Recent Trends in Arbitration and Treaty-Making Practice, SSRN Electronic Journal (2018)Diego G. MEJÕA-LEMOS, Human Rights in International Investment Law and

http://Nicolas Klein, Human Rights and International Investment Law: Investment Protection as Human Right, 4 GOETTINGEN J. INT’l L. 179 (2012).

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