FUNDAMENTAL RIGHTS OF THE INVESTORS: Exploring the Intersection between Public International Law and Investment Arbitration

Presentation

The French Chapter of the Chartered Institute of Arbitrators (CIArb) welcomes Prof. Arnaud de Nanteuil and Benjamin Garel, Senior Legal Counsel at ICSID, for a PAW discussion on the fundamental rights of investors in the public international law context of international arbitration.
Fundamental rights constitute the core protections necessary to safeguard individual liberty and dignity and to constrain the abuse of public power. Seen principally in the human rights framework, these fundamental rights extend equally into international arbitration.
Substantively, fundamental rights govern States’ obligations to respect, protect, and, to varying degrees, fulfil rights relating to property, due process, fair trial, non-discrimination, and—particularly in criminal or quasi-penal settings—the presumption of innocence. Investment protections mirror these concepts: expropriation may encompass intangible property (such as contracts, licences, or regulatory entitlements); and FET and denial-of-justice standards track due process through transparency, legitimate expectations, and prohibitions on arbitrary or discriminatory conduct. Even the definition of “investor,” often treaty-based, intersects with public international law concepts of nationality, including Nottebohm “genuine link” arguments, and raises opportunity for State defenses based on countervailing obligations.
Functionally, these guarantees engage a dense body of public international law, including hard- and soft-law instruments such as the Universal Declaration of Human Rights, the ICCPR, and the ECHR, alongside the applicable international investment agreements. They also implicate jus cogens, customary international law, general principles of law, and regional practice, shaping the interaction between public international law and specific investment regimes.
Institutionally, fundamental rights are articulated and developed by human-rights bodies (including the UN Human Rights Committee and the ECtHR), while arbitral institutions (ICSID, UNCITRAL, PCA, ICC, and SCC) serve as key conduits for the interpretive integration of human-rights norms within investor–state dispute settlement. soon.