Farouk El-Hosseny and Ilan Brun-Vargas have co-authored with Patrick Devine a chapter exploring the toolkit available to investment tribunals dealing with human rights issues. Focusing on the unique laboratory brought about by Latin America and its extractive industries, the authors inquire: how is investment arbitration accounting for allegations of human rights violations?
Newly-cast international instruments show increasing willingness to cater to the relationship between the two bodies of law. Innovations are procedural – with some BITs requiring advance agreement to counterclaims when investors bring their claim – and substantive – with new instruments covering the full spectrum of soft law ossification. At the same time, tribunals have remained true to their preferred approach of addressing human rights claims on the merits, via the mechanism of contributory fault, rather than at the earlier stage of admissibility under the doctrine of unclean hands.
With jurisdictional and admissibility obstacles lifting, human and environmental claims are left to succeed on their own merits. Here, human rights arguments have struggled to overcoming substantial obstacles, most notably causation, because states retain primary responsibility for violations of human rights. The current environment should caution any party against making unfounded or blanket allegations of human rights violations, as these will be subjected to the arbitrators’ increasingly seasoned and sophisticated framework of analysis.
The publication, entitled “ISDS and human rights: a Latin American dialectic” in Latin America and international investment law – A mosaic of resistance is available from Manchester University Press. Click here to find out more.
ABOUT FAROUK EL-HOSSENY
Farouk, a senior associate in the London office, advises clients on arbitrations governed by the ICC, ICSID, and UNCITRAL rules, with a focus on complex commercial and investor-State disputes in the telecommunications and oil and gas sectors. He is often called upon by clients to provide strategic advice in respect to disputes raising matters of taxation, international sanctions, and claims by competing governments.
In addition, Farouk has acted as an arbitrator under the ICC and DIAC rules. He is a member of the ICC Bulletin Editorial Board. Farouk is also actively involved in the Firm’s pro bono practice, having recently assisted REDRESS in a landmark case before the African Commission on Human and Peoples’ Rights (ACHPR).
ABOUT ILAN BRUN-VARGAS
Ilan is an associate based in the Paris office. His practice focuses on public international law and international dispute resolution across a range of sectors, including oil & gas, banking & finance, energy, and mining. Ilan advises sovereign states, state-owned entities, and corporate clients in all aspects of international dispute resolution, as well as on advisory matters and treaty negotiations. His experience covers investor-state arbitration, complex commercial arbitration, and proceedings before international tribunals.
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