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Mr. Eric De Brabandere

Mr. Eric De Brabandere
Associate Professor of International Law
Leiden University’s Grotius Centre for International Legal Studies

Biography Biography in PDF

International Economic Law
Dispute Settlement

Investment Treaty Arbitration and Non-Investment Considerations
The interaction between investment law and obligations and other fields of international law has over the past year gained importance. Increasingly, conflicts between States’ obligations under investment protection agreements and other obligations of States, notably in the areas of human rights, rights of indigenous peoples, environmental law or labour standards, have become visible. For instance, a State may argue that in view of its human rights obligations or obligations under environmental law, it was under an obligation to withdraw a concession or permit given to a foreign investor in order to protection the population’s access to water or guarantee it’s right to health.

There are many ways in which non-investment considerations have become relevant. These will be discussed in relation to the question of how investment tribunals operating based on an investment treaty can (or not) take into account such rules. I address (1) the limited jurisdiction of tribunals, and (2) non-investment considerations as part of the applicable law. This is again is discussed by examining (a) the inclusion of non-investment obligations in investment agreements (b) conflicts between investment obligations and non-investment obligations, (c) the role of treaty interpretation in using non-investment considerations to interpret investment norms, and (d) non-investment obligations as a defense against responsibility?

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(35 minutes)

International Economic Law
Dispute Settlement
Investment Treaty Arbitration and Non-Investment Considerations
A. Legal Instruments
Charter of the United Nations, San Francisco, 26 June 1945.

Universal Declaration on Human Rights, Paris, 10 December 1948.

Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, United Nations, Treaty Series, vol. 213, p. 221.

Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Washington, 18 March 1965, United Nations, Treaty Series, vol. 575, p. 159.

International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3.

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 1958, United Nations, Treaty Seriesvol. 330, p. 3.

Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.

Marrakesh Agreement establishing the World Trade Organization (with final act, annexes and protocol), Marrakesh, 15 April 1994, United Nations, Treaty Series, vol. 1867, p. 3.

Dispute Settlement Rules: Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2, Marrakesh Agreement establishing the World Trade Organization, Marrakesh, 15 April 1994, United Nations, Treaty Seriesvol. 1869, p. 401. 

International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, 2001.
B. Jurisprudence
Permanent Court of International Justice, Factory at Chorzow (Germany v. Poland), Judgment, P.C.I.J. Series A, No 9.

Ad hoc Tribunal, Antoine Biloune and Marine Drive Complex Ltd. v. Ghana Investments Centre and the Government of Ghana), Awards of 27 October 1989 and 30 June 1990.

Permanent Court of Arbitration, Saluka Investments B.V. v. Czech Republic, Partial Award of 17 March 2006.

International Centre for Settlement of Investment Disputes,Siemens A.G. v. The Argentine Republic, Award of 17 Jan 2007, Case No. ARB/02/8.

International Centre for Settlement of Investment Disputes, Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, Award of 24 July 2008, Case No. ARB/05/22.

International Centre for Settlement of Investment Disputes, Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, Award of 30 July 2010, Case No. ARB/03/19.