Balancing Human Rights and Investor Protection: A New Approach for a Different Legal Order

Abstract

Recognizing the political need to show that transnational investors should shoulder "responsibilities" in addition to the international "rights" to which they are granted access under investment protection treaties, this Article proposes a sort of "counterclaim" mechanism for use in future treaties. The mechanism would permit individuals who live in countries receiving foreign investment to bring claims against foreign investors for the violation of serious international rules by their agents or employees operating in the host country. Such rules would include safeguards for international human rights that might be violated in the operation of an investment, as has been documented recently before U.S. courts operating under the Alien Tort Claims Act. The Article concludes by providing an appendix with draft text that could be adopted by the negotiators of future bilateral investment treaties.