Book Symposium Investment Law: Comments on Freya Baetens’ Introductory Chapter

[Laurence Boisson de Chazournes is Professor of international law at the Faculty of Law of the University of Geneva, Switzerland].

In her chapter, Freya Baetens notes that it is necessary to scrutinize “how concepts, principles and rules developed in the context of other sub-fields could (or should) inform the content of investment law.” This scrutiny is well-deserved, as the interrelations of other bodies of norms with the corpus of norms related to investment law have gained traction but remains ambiguous.

The notion of cross-fertilization and that of legal regimes informing one another are abundantly referred to. While I share this a-hierarchical vision (with the caveat of the possible application of jus cogens and erga omnes obligations) of the relationships among different bodies of law, one should be cautious so as not to transform a land of its own—i.e., international law—into an archipelago of islands more or less connected, which needs artificially created pathways.  There is no reason for international investment law, as a field of public international law à part entière, not to be incorporated in the universe of international law.

In addition to stressing the need for decision-makers to adopt a systemic view of such interrelationships, Freya highlights the key role that rules of interpretation play in promoting a more unitary approach.  Much more attention should be paid to the set of rules as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties.  These rules should be observed as a set of objective rules (to be interpreted in conformity with the rules they provide for) and not as a menu left to the taste and desire of tribunals.

I would like to draw attention to the concept of mutual supportiveness which has emerged as an interpretative tool. Freya’s viewpoint evokes it. It constitutes a lens through which international law is increasingly observed. Mutual supportiveness implies that States and arbitrators should refrain, whenever possible, from construing conflicts between international investment obligations and other legal interests. Moreover, there should be mutual adjustments: on each side, there should be an attempt to prevent the eruption of a conflict. This can be done in an ex ante manner at the time of the negotiation. Freya’s chapter provides some examples in this respect. States bear an important responsibility in this context. The prevention of the eruption of a conflict can also be done in an ex post manner when a dispute is to be settled.  This is where the rules of interpretation play a key role.  It undoubtedly focuses attention on the powers of tribunals.  The wording and content of investment treaties is of crucial importance in an interpretative context.

The principle of mutual supportiveness has most prominently emerged in the relationships between international trade and the environment, but is not limited to this area.  For example, the OECD has incorporated mutual supportiveness as a primary principle in its Green Growth Strategy Report (2011), encouraging Member States to foster compatibility between their investment-related and environmental policy goals.

I then would like to make two observations related to two so-called sub-fields. One of these deals with human rights considerations, while the other one concerns international humanitarian law. 

The intermingling of investment law with corollary legal fields extends to human rights law. I would like to highlight a paradox in this area.  The classical way of observing this process of information is to look at how human rights are taken into consideration—in other words, to see how States can accommodate respect for human rights in an investment context.  Some awards have ventured in this direction. I am thinking, for example, of the Glamis Gold NAFTA Chapter 11 case, in which the rights of local communities, such as indigenous peoples’ cultural beliefs, were at the center of the case (if not formally taken into account). However, this information process is still in its infancy.

The paradox that I have alluded to is linked to the fact that there is another way of looking at human rights: to note that investors are increasingly claiming respect for human rights. They are doing this under the cover of the rule of law and the minimum standard of treatment notions. Indeed, more and more arbitral awards hold that a denial of due process or an issue of procedural fairness may amount to a breach of fair and equitable treatment. By dealing with the scope of application of notions of the rule of law or the principle of minimum standard of treatment, arbitrations are in fact contributing to the application of human rights aspects to international investments.

Another dimension of this relationship between human rights and investor rights arises when domestic law and international law fill gaps in international investment frameworks. This gap-filling function may specifically occur with regards to fundamental rights not addressed in an investment treaty. For example, the Energy Charter Treaty does not mention the protection of private property or the rule of law. However, nothing prevents a tribunal from relying on host State laws and international law to fill these lacunae. Some tribunals have done so in the area of corruption, referring to the concept of transnational public policy.

Lastly, under the concept of “legitimate expectations,” investors have been advocating for the application of non-investment law and, more especially, due process issues. In this context, tribunals have analyzed the extent to which domestic regulatory frameworks may respond to the needs of citizens without defying investor expectations.

These developments are somehow paradoxical. A more traditional vision of human rights in investment law would involve a State justifying its actions under the premise of general welfare and promotion of human rights. Yet, the unconventional vision of examining human rights through an investor’s perspective is to be taken into consideration.

To my sense, it would be important to study more closely the latter practice. It could inform the promotion of public policy goals as protected under international human rights law. Notions such as the minimum standard of treatment could be a pathway to this end. The time may be ripe for consolidating these trends so that human rights can be apprehended in their various facets.

Let me now turn to international humanitarian law, which finds application in the context of an armed conflict or in a situation of occupation.  Issues of investment law arose for example in the context of the Iraqi occupation, due to the contracts negotiated by the Coalition Provisional Authority (CPA).

The law of military occupation is quite laconic with respect to economic affairs. Indeed, the Hague Regulations concerning the Laws and Customs of War on Land, annexed to the 1907 Convention, offer no explicit guidance on the management of international investments in an occupied territory. The law of military occupation no doubt permits the negotiation of commercial and investment contracts. So the question is: within what limits? How should the principle of permanent sovereignty over natural resources be protected? Here we see that the extent to which international humanitarian law informs investment law is not that helpful.  There is a need to reflect further on these issues. Cross-fertilization and legal regimes informing one another might not always bring answers.

Freya Baetens must be congratulated for having put together a very thought-provoking and rather exhaustive volume on the intricate and ever-evolving interaction between international investment law and other “sub-fields” of international law.