Property Rights as Human Rights in International Investment Arbitration: A Critical Approach

Abstract

The treaty-based regime of investment protection is said to protect the property rights of foreign investors. Arbitral tribunals are usually tasked with settling investment disputes using principles of international law, some of which refer to the doctrine of protection of aliens. These features have led some commentators to compare the protection of foreign investment with the protection of property rights by human rights instruments and courts. This Essay provides a critical perspective on the relationship between these two systems. The Essay re-examines the widespread assumptions that underlie efforts to find parallels between human rights and foreign investment protection. The analysis reveals that even when investment tribunals protect property rights, they do so within the narrow confines of a monetary dispute. Substantive treaty provisions, as interpreted by arbitral tribunals, cannot be placed in the tradition of the protection of aliens, but rather in the efforts of developed countries to entrench the Hull formula. Furthermore, after examining the distinct approaches to the protection of property rights by arbitral tribunals and human rights courts, this Essay concludes that the narrow goals of international investment agreements are fundamentally different from those pursued by human rights instruments.