INTERSECTION OF HUMAN RIGHTS AND INVESTMENT ARBITRATION: THE ROAD AHEAD FOR INDIA

Surjendu Sankar Das

The full chapter may be found by clicking on the PDF link to the left.

International Investment Arbitration has, ironically, stayed apart from changes in other relevant domains of law as a niche body of jurisprudence. Tribunals are increasingly being forced to consider issues that arise from a human rights narrative. According to several academics, there exist ‘structural disparities’ wherein international investment law and public international law are concerned. The same have led the tribunals to prioritise contractual standards that the host nations have agreed upon with the investors.


Human rights are not explicitly included in earlier investment protection agreements. However, it is becoming increasingly obvious that current international events have an impact on advancements in the domain of investment protection. The harsh criticism of some areas of investment arbitration has sparked some interesting developments in the debate. While arbitral tribunals previously paid little regard to human rights law concerns, the same appears to be no longer the case. Quite opposite, recent rulings demonstrate that arbitration tribunals are becoming more open to address of human rights problems.
 

The article is based on a thorough examination of publicly accessible investorstate conflicts in which the parties to the dispute or third-party interveners cited human rights. It endeavours to succinctly capture the development of practice in the perspective of Hague Rules and also highlight a juxtaposition of Indian law as its stand today.