Investor-state arbitrations and the human rights of the host state’s population: An empirical approach to the impact of Amicus curiae submissions

Abstract

Projects of foreign investors potentially impinge on the human rights of the people living under the host State’s jurisdiction. As host States show reluctance to raise human rights arguments in international investor-State arbitration, the submissions of amici curiae (“friends of the court”) from civil society can point the tribunal to the human rights implications of the dispute and thus represent the affected citizens' or a broader public interest. This chapter will examine all cases before NAFTA and ICSID arbitral tribunals in which human rights of the host State’s population were invoked by amici in substantive submissions. The author will explore which human rights the amici refer to and in how far the tribunals respond to the alleged human rights arguments in their procedural orders, decisions and awards. This rather empirical approach is supposed to evaluate the relevance of amicus briefs which aim at promoting the human rights of the host State’s population. The results will help to assess the impact of human rights related amicus submissions on contemporary investment arbitration and international investment law in general.