Think Piece

Extending Responsibilities in International Investment Law

September 2015
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International investment agreements (IIAs) are typically one-way instruments, in that they basically establish obligations for host states and not for investors. These obligations can be far-reaching in their implications, and they are accompanied by strong dispute resolution mechanisms in case of alleged breach. Thus, IIAs can considerably limit host states’ regulatory powers within their own territories with respect to critical activities. The fact that IIAs directly grant protected investors certain rights under international law is nowadays generally accepted. Thus, there would seem to be no legal impediment for these treaties to provide for investor obligations as well. Rather, the absence of these obligations appears more related to the origins and evolution of modern IIAs. However, aside from the general absence of investor obligations in the treaties, IIAs do not provide for any mechanism that could make such related entities liable for any illegality committed in relation to the investment in question, leaving this issue to the domestic laws of the host state. This think-piece focuses on the distinctive absence of investor obligations in modern IIAs by suggesting alternatives under which such obligations may be introduced—either directly or indirectly—and enforced. Turning IIAs into more balanced instruments—that is, providing for rights and obligations of investors, and for duties and regulatory powers of host states—could potentially address some of these concerns. The inclusion of investor obligations would also allow the use of IIAs as tools to further international public interests other than investment promotion, in cooperation with other international regimes.

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