The human right to water is pivotal and essential for the preservation of human life. This right is comprised in International Covenant on Economic Social and Cultural Rights (ICESCR) under Article 11(1). The treaty body entrusted with the role of supervising Contracting States’ adherence to the ICESCR states,
“[t]he right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival.”
This natural born human right is seen to be a “prerequisite for the realisation of other human rights” and has been incorporated in various other international treaties. This basic right to drinkable water and sanitation is acknowledged as part of various other widely recognised international human rights and is an essential element for the purpose of implementing them. Furthermore, it has been expressly linked that the right to clean drinking water is an indespansable element for the realisation of the right to life and the fact remains that a deficiency in the supply and “access to drinking water and sanitation jeopardizes the lives of millions of individuals”.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) makes it a requirement for all nations to take pertinent measures for the safeguarding of all females’ rights in ensuring the enjoyment of “adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply.” Water and sanitation facilities are crucial elements that are directly related to the human right to water. As Mr. El Hadji Guissé clearly mentions in his notes, “ the righ tot water and sanitation are interdependent. The right to water, particularly the aspect of water quality, depends on adequate sanitation for all. Conversely, to ensure hygiene and adequate standard of sanitation, each person should have access to at least a small amount of water on a regular basis.”
The vital significance of the right to water for a human life is further illustrated in Article 24 of the Convention on the Right of the Child, “the right of the child to the enjoyment of the highest standard of health” via suitable procedures for the combat of disease “ through […] the provision of adequate […] clean drinking water.”
Even though the definition of adequate amount of water for the fulfilment of the right to water may differ depending on the situation and condition State, the fact remains that irrespective of situation; water must be made available, must be of sufficient quality and must be attainable. The Committee on Economic, Social and Cultural Rights (henceforth referred to as CESCR) has clearly defined that in regards to the accessibility of water, it must be made available sans discrimination as well as economically and physically attainable.
In regards to discrimination against the accessibility to water, General Comment No 15 has expressly stated that all water amneties as well as services must be made attainable to all individuals, especially to the “most vulnerable or marginalised sections of the poppulation” with strict prohibition on discrimination. Furthermore, Contracting States owe a duty to its citizens for the prevention any discriminatory treatment on all internationally proscribed warrant in measures relating to water and its’ ministrations.
In its’ attempt to elucidate the right to health, the CESCR assumed a homogenous definition of the term accessibility by justifying that a causal element of health such as potable water, is required to be accessible to all individuals, predominantly for “the most vulnerable or marginalized sections of the population […] within safe physical reach for all sections of the population [and] affordable for all.” Mr. Paul Hunt explains that in order for the full enjoyment of the highest accessible degree of physical and mental health, there needs to be made available all primary causal elements related to health including health amenities, commodities as well as facilities.
By discussing the relations of water to the right to health, it must be highlighted that physcial obtainability necessitates that “water, and adequate water facilities and services, must be within safe physical reach for all sections of the poppulation” . Water that is innocuous in nature, adequate and acceptable must be reachable within or in immediate proximity of “each household, educational institution and workplace”.
On the basis of economic attainability, it is essential that that access to provisions for water and its services must be made reasonably priced for all. The CESCR has clearly delineated that any remittance for water services must be on the basis on “the principle of equity”, with the guarantee that the said services, whether it be public or privately furnished, must be made economically acessible to all with the inclusion of “socially disadvantaged groups”. Additionally, the CESCR went on to specify that “the direct and indirect costs and charges associated with securing water must be affordable, and must not compromise or threaten the realization of other Covenant rights” .
The interlink between the right to life and water is addittionally present in the International Covenant on Civil and Political Rights as well as American Convention on Human Rights. The immanent right to life laid down in the ICCPR and has clearly precludes any privation of sustenance. This is further substantiated by the American Convention which expressly mentiones that every individual has the right to have his life respected” and that no one shall be unjustifiably denied their right to life.
The right to life is interpreted by the Inter-American Court to include the guarantee to circumstances that allow a human person to lead a life of dignity. The Court went on to emphasise that States owe and obligation to create circumstances that would not entertain the violation of this basic right.
1.1 Globalisation: Striving towards the Privatisation of State duties.
Privatisation of public services such as water can be seen to be a part of a broad category which encompasses various other arrangements such as outsourcing specific minimalistic services like billing and maintenance, to the major arrangements such as private ownership and control of a city’s water facilities and supplies. However, the privatisation of public water services has not always been as efficient as widely presumed in comparison to States\’ provisions of public water services. The salient point is that operational efficiency is not synonym with being economically optimal. Private providers may operate with lower operational cost compared to the State, however, a substantial public cost may remain present.
Over the last decade and 1/2, States have sought to privatise public services especially developing nations mostly due to the influence of the International Monetary Fund or the World Bank. Nonetheless, the question arises that while in pursuit towards this paradigm shift, is it implied that their international obligations such as the recognition and protection of human rights – Inclusive of their citizens right to water – have been privatised? It is an unmistakable no.
In theory, the intention for privatisation is to increase market efficiency and to reinvigorate the source of capital to replace an under-funded and poorly managed public bureau. It is potent to note that the public choice theory focusses on issues of political interventions in economic decisions that is relevant to public ownership. The effects of privatisation have been viewed to alienate politicians and managers, ultimately depoliticizing firms, making it too expensive for politicians to subsidise them. Even so, this does not suggest that States are free from their international obligation vis-à-vis right of their citizens.
Nevertheless, privatisatin makes the promise of illegitimate use of manipulating public funds by distancing the State and producer as well as substantial growth in the transaction costs of such involvement more plausible. If this issue is not observed cautiously, this shift towards privatisation might trade a state-owned monopoly for a private one. A cure may very well become a curse, hence creating a hindrance towards the realisation to the right to water for all citizens; interchange between politics and State decision-making governance to a private economic & profit making one.
1.2 The relationship between States’ obligations and Privatisation.
International human rights law exemplifies that a States’ owed obligation in human rights comprises the duty to ‘respect, protect and fulfil.’ Albeit the fact that the General Comment No. 15 is not legally binding, it consist peremptory exegesis of the ICESCR which delineate the previously mentioned 3 state obligations.
The primary obligation ‘to respect’ requires domestic measures to be taken up by States for the prevention of any violations to the right to access of water by its citizens or investors (irrespective of whether local or foreign). A State is reponsible for the protection of water rights by preventing 3rd party interference that poses any threat to its realisation. Thirdly, a state is required ‘to fulfil’ by means of domestic legislation created for the purpose of setting a standard for appropriate pricing guidelines or the “introduction of a system of income supplements for socially disadvantaged groups”.
The aforementioned international obligations in relation to the water rights indirectly imposes 2 variations of operational obligations on States, i.e, the obligation to endeavour mechanisms for the realisation of the right to water; prevention of 3rd parties from violating the right to water; procurability, standard and accessibility of water.
The 1st operational obligation may lead a state to invite foreign investment to play a subsidiary role in fulfilling this obligation. A host nation may make policies for regulations of foreign investment in instances where the right to water may be detrimentally affected.
Considering the fact that one of the most fundamental obligations of a State is to provide a sufficient amount of clean water and undertaking courses of action for the complete realisation of the human right to water sans discrimination. Furthermore, nations have a clean duty to acomplish an exemplary degree of achievable rights ‘[…] based on the resources available to them’.
In the past, the mainstream operation as well as financing of public services such as water has been the sole responsibility of the State. Prior to 1970, it was a conventional school of thought that a nation was in the most ideal position to handle operations of public water infrastructure, i.e., water supply and sanitation , however, there are many developing nations currently who opt for privatisation as they are primarily and financially handicapped or lack the technological expertise to produce adequate supply and clean water for their citizens.
Whilst the trend towards privatisation was based on the notion that the commodifications of water services were economically advantageous, however, it was not always a favourable outcome as the fact remains that these services are state owned and it is their prerogative to regulate as part of its State sovereignty.
It must be accentuated that the commodification of water services via privatisation has been a complex interrelationship. In 1999, 5% of the worlds’ population was serviced by private providers; predicted increase by 2015 to 6% and 21% by 2025.
The UN General Assembly Resolution 2010 reported that approximately 884 million people across the world had insufficient access to safe and clean drinking water. Additionally, basic sanitation is unavailable to 2.6 billion. By the year 2015, it was promulgated and agreed in the Johannesburg Plan of Action that the proportion of people without continuous access to safe drinking water would be halfed. An estimate of $ 10 billion would be needed to meet this requirement.
The aforementioned is one of the primary reasons as to many nations and state actors strongly consider the involvement foreign investment in the water and sanitation sector. Conversely, on a regional level the circumstances were slightly different.
The General Assembly Resolution invites both states as well as international organisation to financial, infrastructure as well as technological resources as a means of international assistance to developing countries for the propose of creating the possibility of supplying their nationals with sterilized, safe, obtainable as well as economical drinking water and sanitation. The response of encouraging investors both domestic and foreign was unanimous.
It must be highlighted that the intentions behind this open invitation were essentially for the purpose of creating sufficient access to clean drinking water and sanitation that warranted for the realisation of the human right to water by States. For instance, China’s motion to encourage investment both private and public in the water sector , i.e, desalination projects for the employment of seawater in the attempt to increase water supply – the installation of facilities for water treatment.
An ideal illustration of international assistance that has aided a nation in the realisation of the human right to water and sanitation is the Palestine desalination project. The European Union has invested € 10 million for the 1st phase, which has the capability of yielding 6,000m3 of potable water daily, providing 75,000 Palestinians with safe and clean drinking water. With the expected completion in mid-2019 of the subsequent phase (additional € 10 million investment), an estimated 14,000m3 of clean drinking water daily shall be produced giving access to 150,000 Palestinians. Including the investment for the 3rd phase, an accumulative amount of € 30 million which ultimately increases the daily production of sanitised and safe drinking water to 20,000m3. This plan for building a facility was implemented by UNICEF and construction is carried out by the Palestinian Water Authority and Coastal Municipalities Water Utility.
Although the above investment was made on the basis of aiding a community to access and realise its’ right to water, this illustration may fall short of ellaborating the enigma faced between States and investors (foreign or domestic) as a result of the move towards privatisation. Nevertheless, it is suffice to exemplify the importance of the right to access of clean drinking water and sanitation as well as its’ impact for the enjoyment of the right to life. Furthermore, this funding was mainly to increase the supply as well as quality of water − 95% of current supply water in Gaza is unfit for human use − for the people and to reduce the impact and prevent an environmental disaster as a result of over-extraction of groundwater. It is noteworthy as it emphasises the very essence of the human right to water and the weightiness of its nexus to the right to life.
Foreign investment has contributed to the realisation of the human right to water for citizens by States. The expertise it offers especially for developing nations such as constructing water and sanitation amneties as well as infrastructure makes it possible for the erection of water related buildings as well as reservoirs are examples of aiding in the increase in supply of water to nationals. Ancillarly, investors may also assist a state in realising its’ duty to its people by means of involving in variant models of public-private partnership for augmenting a nations’ administrative potentiality to fulfil its’ water obligations.
In regards to investors, the commodification of water and sanitation services is a sector that is seen to be lucrative in nature. As a result, there has been a significant increase in the involvement of private providers in this sector. This is a contributing factor as to the materialisation of various investment arbitration cases with similar issues seen in the last 15 years. It generally begins with States’ intention to contract out their water and sanitation services to a foreign investor or conglomerate firms. Operations would be carried out effortlessly until issues such as health concerns, quality of water, raise in tariffs, or even discriminating differences in access to water or services against private providers emerge, all of which are clearly deemed as violations of human rights. The premise created the foundation for States’ resort to cease any foreign investment activity as well as to justify their action against a breach of the investment treaty.
Issues such as narrated above have increasingly been brought up to the tribunals’ attentions where claims have been made by foreign investors of the discontinuance or adjournment of contracts or treaties based on accusations of expropriation and States’ retorts based on human rights as a defence on violations of the right to water.
2. International Investment Arbitration and the relevance of Human Rights.
There are certain elements to both aspects of law that are similar; nevertheless, vast differences are present. Bilateral Investment Treaties (henceforth reffered to as BITs) comprise of pertaining rights for the protection of investors from State inclusive of the right to counterpoise for expropriation, right to fair and equitable treatment and provisions for the protection against discrimination on the basis of nationality. Similarly, human rights are safeguards for individuals against any violations by State.
BITs essentially provide private companies with the oppourtunity for claims to be brought against State infront of a autonomous arbitral tribunal. Both fields of study protects citizens as well as investors from violations made by State by furnishing them with access to an international platform.
Over the years, there has been a growing recognition as well as formation of the opinion that investor-state arbitration is not solely confined from the rest of the legal realm, hence creating the possibility to have human rights ramifications. This has influenced the viewpoint of academicians as well as investment arbitration tribunals to recognise the influence their decisions have on human rights, especially when aproaching cases pertaining to issues of political and social volatility. To further support this contention is the fact that human right violation claims have been brought forth by individuals, foreign investors as well as host nation.
Tribunals have been divided on whether investor human rights’ claim falls within their dominion in investment agreements that were expressly worded, however, the significance of human rights as well as their appositeness to investor-state arbitration were recognised, even if its’ application was rejected.
Those who accepted such claims were of the opinion that it falls within their jurisdiction. In these Russian arbitration cases , the tribunal recognised that while it was not a human rights court, it falls within its jurisdiction examine any ‘allegations of harassment and intimidation as they form part of the factual matrix of Claimants’ complaints that the Russian Federation violated its obligations’ under Part III of the Energy Charter Treaty.
In the ICSID case Desert Line Projects v Yemen , the tribunals accepted investors’ human rights claims as it was gathered that the employee’s of the investors were ‘harassed, threatened and detained by the Respondent as well as by armed tribes’ and awarded it moral damages’ . Additionally, a supplementary example would be a case where invasions by war veterans as well as migrants’ caused the investors ‘disturbances resulting from the taking over of their farms and for them to start a new life often in another country’ . Regarding investors’ rights allegedly being violated nby states’, the tribunals have acknowledged the apposite human rights authority, particularly the European Court of Human Rights. In Mondev v United States , the tribunals’ decision reaffirmed the above statement.
Prior to discussing the influence of third-party participation by means of the admission of the amicus curiae brief, it is vital to accentuate the logic as well as the central characteristics of this officialdom. In the past the international investment regimes have procured favour largely due to the fears of investors ‘being subject to arbitrary and discriminatory treatment by developing country goverments’ , like expropriation and host nations’ parliament’ acknowledgement of the necessity to engage with investment prospects by furnishing investors with appropriate protection. This is relevant for developing countries that have the required natural resources as well as manpower but lack the monetary resources and technological expertise, hence seeking foreign investment.
This regime is undergoing rapid regulative advancements via various regional, provincial, and bilateral authorities. Aside from BITs, there are other pertinent Internation Investment Agreements (IIAs) such as the North American Trade Agreement (NAFTA) and division specific like the Energy Charter Treaty . Arbitration tribunals and procedural rules may differ in investor-State arbitration depending on its relevant treaty mechanisms. An applicable illustration is Chapter 11 NAFTA, which states that an investor has the choice to pursue on the rationale of 3 different regulated arbitration rules, i.e, ICSID Arbitration Rules (ICSID Rules) , the ICSID Additional Facility Rules . Legal proceedings in either option would be conducted under the aegis of the ICSID or the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL RULES) , when needed.
Regardless of the differences, there are present various factors why the investment arbitration system interest investors. Primarily, it equips parties with an efficient and to an extent, an unprejudicial outcome as its’ proceedings are not within the related states’ jurisdiction , which explains why a large proportion of these arbitral judgements are usually not put through appeal apart from instances specified in the arbitration rules . Additionally, ‘the implication […] that what proceeds in the arbitration will not only be kept private between the parties but will remain absolutely confidential’ is a supplementary appeal as to why investors opt for this system.
Among the various protections for investors given by IIAs, the crucial investor rights include the requirement for foreign investors to be treated the same as domestic investors in a host nation, which essentially means no discrimination based on nationality; the requirement for foreign investors who are nationals of the state covered by a treaty to be given the best treatment compared to other foreign investors; host states are obligated to give foreign investors a minimum internation standard if fair and equitable treatment and the prohibition against expropriation without compensation.
The tribunals recurrently rely on the procedural rules that preside over commercial arbitration. On the contrary, investor-State arbitration often involve the governemental services such as water, oil and gas or waste management. It is implied that ‘government regulations aimed at the protection of public welfare […] such human rights, health and safety, labour laws […] or environmental protection’ . Concurrently, there is heightened conciousness that in various aspects, investor-State ajudication is redirecting the decision-making process from domestic to the international level.
Some scholars have expressed their viewpoint that international investment arbitration is an evolving genre of ‘global administrative law’ by suggesting that host nations are obligated by investment arbitration to conciliate altercations that emanate from autarchic acts, therefore operating as a technique of control over state sovereignty. As per Harten and Loughllin, ‘investment arbitration is best analogized to domestic administrative law rather than to international commercial arbitration’.
In theory, investors rights have a restrictive impact on the states’ right to regulate. The practical aspect of this is the fact that the 2 paramount rights for human rights or the righ to regulate is the proviso for expropriation and the fair and equitable treatment clause. It is key to mention that issues pertaining to discrimination are not as requisite as human rights regulations as the legislation and anti-discrimination in investment law acknowledges that lawful divergence can be recognised between individualls and investors warranted by sound public policy goals.
Prevailing cases in investor-state arbitration does not address the existing uncertainties to equipoise states’ right to regulate and investors’ rights. This can be observed in decided case pertaining to the expropriation and fair and equitable treatment clause.
I. Expropriation
States have the absolute right to expropriate or seizing of property on the basis of public benefit. Expropriation deals with instances where a state is well within its legal rights to interfere in a manner that obstructs investors from profitting or having command over investment.
There are 2 types of expropriation: direct and indirect. The former transpires when a state decides to take possession of an establishment. This takes place when definite attestable action is taken by a state, which prompts an investor’s loss of ‘normal control of their property’. The latter refers to
The Amicus Curiae Brief
Let us now discuss the significance, applicability as well as impact of the amicus curiae brief in investment disputes relating to human rights issues, particularly the human right to water.
As discussed previously, various arbitration rules demand differing approaches. The UNCITRAL Rules vary from those specified by the ICSID. NAFTA on the other hand, has established specified rules (not required to be endorsed by other tribunals) for the proffering of amicus curiae.
The question arises as to whether these differing approaches create an apt equillibrium to the enforcement safeguards for commericial interests and confidentiality with the need to be translucent and unbiased in issues relating to problematic authoritative decisions of states?
Nevertheless, foregoing the query dileneated above, this author shall first proceed with reviewing the process and role of the amicus brief in dealing with issues pertaining to human rights as well as analysing the relevant caselaw before evaluating the tribunals approach and whether it has been sucessful in maintaining a legally correct equilibrium in water related investment disputes.
Footnotes
United Nations Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 15, The right to water, UN Doc E/C.12/2002/11, para 3, 29th Session, [20th January 2003].
Ibid para 1, 3.
UNCHR, ‘Final Report of the Special Rapporteur El Hadji Guissé 2003/20’ (2003) UN Doc E/CN.4/Sub.2/2003/20
Ibid, para 29 ; UNCHR, ‘Preliminary Report of the Special Rapporteur El Hadji Guissé 2002/10’ (2002) UN Doc E/CN.4/Sub.2/2002/10.
Convention on the Elimination of All Forms of Discrimination against Women, UNGA Res 34/180, art 14(2)(h) http://www.refworld.org/docid/3ae6b3970.html
UNCHR UN Doc E/CN.4/Sub.2/2003/20, para 50, n 3.
Convention on the Rights of the Child, (adopted 20th November 1989 entered into force 2nd September 1990) UNGA Res 44/25 (CRC) art 24(1), (2)(c).
CESCR General Comment No 15, para 12, n 1.
CESCR General Comment No 15, para 12(c)(iii), n 1.
Ibid, para 15.
United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health, (E/C.12/2000/4), para 43(c), 22nd Session, [11th August 2000].
UNCHR, ‘Interim report of the Special Rapporteur on Right to the enjoyment of the highest attainable standard of physical and mental health’ (2003) UN Doc A/58/427, para 51-53(c-d).
CESCR General Comment No 15, para 12(c)(i), n1.
Ibid
Ibid, para 12(c)(ii).
Ibid, para 27.
Ibid, para 12(c)(ii).
International Covenant on Civil and Political Rights (adopted 16 Decemeber 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 1(2), 6(1).
American Convention of Human Rights, OAS Treaty Series No 36 (1978) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser.L.V/II.82 Doc 6 Rev 1 at 25 (1992), art 4(1).
Inter-American Court of Human Rights, Niños de la Calle Case Villagrán Morales et al v Guatemala, IACHR Series C No 63, IACHR 17, para 144.
Ibid.
Andrei Shleifer, Maxim Boycko, Robert W Vishny, ‘A Theory of Privatization’ [1996] 106 (435): Economic Journal, 309.
Emmanuelle Auriol, Pierre M Picard, ‘Infrastructure and public utilities privatisation in developing countries’, [2009], Volume 23, World Bank Economic Review, 77.
Joseph E Stiglitz, Making Globalization Work, 1st edn, (W W Norton & Company 2006). Add website to book in bibliography
n1 , para 33.
Ibid, para 25-29.
Christina Leb, ‘The Right to Water in a Transboundary Context: Emergence of Seminal Trends.’, [2012], Water International, 640, 642-643.
GC15
Isabelle Fauconnier, ‘The Privatisation of Residential Water Supply and Sanitation Services: Social Equity Issues in the California and Internationl Contexts’, [1999], Berkeley Planning Journal, 13(1).
William Schreiber, ‘Realizing the Right to Water in International Investment Law: An Interdisciplinary Approach to BIT Obligations’, [2008], 48 Natural Resources Journal 431, 434.
Howard Mann, ‘Implications of International Trade and Investment Agreements for Water and Water Services: Some Responses from Other Sources of International Law’, [2006], 24. Add website to book in bibiliography.
Pinsent Masons Water Yearbook, 13th edn, [2011 – 2012]. Pay for Scribd check info.
UNGA, ‘The Human Right to Water and Sanitation’, UN Doc A/RES/64/292, (3rd August 2010, 2.
UNCHR, Fifty-fifth Session 2nd July 2003, ‘ Report of the High Commissioner for Human Rights on Human Rights, Trade and Investment’, UN Doc E/CN.4/Sub.2/2003/9.
Refer to The Protocol on Water and Health (UN Economic Commission fo Europe 1999; the European Charter on Water Resources by Council of Europe 2001; the Abuja Declaration adopted at the 1st African- South America Summit 2006; the message from Beppu, adopted at the 1st Asian-Pacific Water Summit 2007; the Delhi Declaration, adopted at the 3rd South Asian Conference on Sanitation in 2008; the Cairo Declaration, adopted by the 15th Summit of Heads of State and Government of the Non-Aligned Movement in 2009.
Ministry of Commerce People’s Republic of China, ‘Catalogue for the Guidance of Foreign Investment Industries, (Amended 2011), Part IV, http://english.mofcom.gov.cn/article/policyrelease/aaa/201203/20120308027837.shtml
European Union External Action, [2017], ‘EU Support to Gaza: Inaugurating the First Phase of Seawater Desalination Plant and Launching the works at Sufa Landfill Site’, 170119_11, 19th January 2017 https://eeas.europa.eu/headquarters/headquarters-homepage_en/18928/EU%20support%20to%20Gaza:%20Inauguration%20the%20first%20phase%20of%20seawater%20desalination%20plant%20and%20launching%20the%20works%20at%20Sufa%20landfill%20site ( add website in bibliography)
Ibid
Ibid
http://www.timesofisrael.com/eu-inaugurates-gazas-first-desalinization-plant/
Jorge E Viñuales, ‘Foreign Investment and the Environment in International Law’, (Cambridge University Press 2012), 179-180.
International Centre for the Settlement of Investment Disputes, Compania de Aguas del Aconquija SA and Vivendi Universal v Argentine Republic [Vivendi II], (ICSID Case NO ARB/97/3); Azurix Corp v Argentine Republic (ICSID Case No ARB/03/30); Azurix Corp v Argentine Republic (ICSID Case No ARB/01/12); Aguas del Tunari SA v Reoublic of Bolivia (ICSID Case No ARB/02/3); SAUR International v Argentine Republic (ICSID Case No ARB/04/4); Biwater Gulf Ltd v United Republic of Tanzania (ICSID Case No ARB/05/22).
Timothy G. Nelson, ‘Human Rights Law and BIT Protection: Areas of Convergence’, [2011], 12 Journal of World Investment and Trade, 1, 27.
Filip Balcerzak, ‘Jurisdiction of Tribunals in Investor-State Arbitration and the Issue of Human Rights’, [2014], 29(1) ICSID Rev 216.
Permanent Court of Arbitration, Yukos Universal v Russia (PCA Case No AA 227), Interim Award on Jurisdiction and Admissibility; Veteran Petroleum v Russia (PCA Case No AA 228, Interim Award on Jurisdiction and Admissibility.
Permanent Court of Arbitration, Hulley Enterprises v Russia (PCA Case No AA 226), Final Award, para 765.
Desert Line Projects LLC v Republic of Yemen, ICSID Case No ARB/05/17.
Ibid, para 286; n 44, 223.
Bernardus Henricus Funnekptter and others v Republic of Zimbabwe, ICSID Case No ARB/05/6, para 138.
Mondev International Ltd v USA, ICSID Case No ARB(AF)/99/2; Luke Eric Peterson, ‘Human Rights and Bilateral Investment Treaties’, International Centre for Human Rights and Democratic Development, 23; Pierre-Marie Dupuy, ‘Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law’ in Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds), Human Rights in International Investment Law and Arbitration (OUP 2009), 51.
Ibid, para 144.
J. Anthony VanDuzer, ‘Enhancing the Procedural Legitimacy of Investo-State Arbitration through Transparency and Amicus Curiae Participation’, [2007], 52 McGill Law Journal, 681,688.
Ibid 688.
Paul Kenneth Kinyua, ‘Assessing the Benefits of Accepting Amicus Curiae Briefs in Investor-State Arbitration: A Developing Country’s Perspective, [2016], accessed at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1310753
North American Free Trade Agreement, United States-Mexico-Canada, [17 Decemeber 1992], 32 ILM 289.
Energy Charter Treaty, 2080 UNTS 102, [1994], art 26.
ICSID Rules of Procedure for Arbitration Proceedings, http://www.sice.oas.org/dispute/comarb/icsid/icsid2a.asp
ICSID Rules Governing the Additional Facility for the Administration of Proceedings the Secretariat of the International Centre for the Settlement of Investment Disputes, http://www.sice.oas.org/dispute/comarb/icsid/icsid3.asp
UNCITRAL Arbitration Rules, United Nations Commission on International Trade Law, [2011], accessed at http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rules-revised-2010-e.pdf
n 48, chapter 11, art 1120.
n 45, 668-690.
Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, [1965], 575 UNTS 159, 4LLM 532, art 53.
Loukas Mistelis, ‘Confidentiality and Third-Party Participation: UPS v Canada and Methanes Corp v USA’, International Law and Arbitration 169, 169 (Todd Weiler edn)
Howard Mann, ‘Internation Investment Agreements, Business and Human Rights: Key Issues and Opportunities’, [2008], International Institute for Sustainable Development, 4.
Barnali Choudhury, ‘Recapturing Public Power: Is Investment Arbitration’s Engagement of the Public Interest Contributing to the Democratic Deficit?,
Ibid, 775.
Gus Van Harten, Martin Loughlin, ‘Investment Treaty Arbitration as a Species of Global Administrative Law’, [2006], 16 The European Journal of Internationa Law, Vol 17 No 1,121, 122.
Ibid, 121.
Parkerings-Compagniet v Lithuania, [2007], ICSID Case No ARB/05/8, section 8.3; Methanex Corporation v United States
Iran-US Claims Tribunal, Starrett Housing Corp v the Governement of the Islamic Republic of Iran, 16 IRAN_US CTR, 122.
Compañia del Desarrollo de Santa Elena, S.A. v Republic of Costa Rica, ICSID Case No ARB/96/1, para 76.
2017-3-22-1490189904