Human Rights, ESG and Civil Society in Investment Arbitration

Presentation

Human rights, ESG and civil society concerns are gaining prominence within the realm of investment arbitration.

These concerns have been taken into account in the draft of the modernised ECT, requiring States to abide by the Paris Agreement. They also feature prominently in the recently signed EU-Angola Sustainable Investment Facilitation Agreement, representing the latest generation of treaties, which seeks to strike a balance between investor rights and host State obligations. These concerns have further made their way into the discussions within UNCITRAL Working Group III.

Even when not explicitly stipulated in treaties, arguments rooted in human rights, ESG and CSR obligations, which can have a direct or indirect impact on investors (for example, through the new EU Corporate Sustainability Reporting Directive), are increasingly frequently raised in pending arbitrations.

These developments point towards a re-balancing between investor rights/obligations on one hand and host State rights/obligations on the other.

This panel will explore whether this re-balancing is a mere illusion or a substantial transformation. The panel will also explore its appropriateness and effectiveness, including whether it may, at times, hinder rather than foster the attraction and retention of foreign investment in host States.