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International Arbitration and Global GovernanceContending Theories and Evidence$
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Walter Mattli and Thomas Dietz

Print publication date: 2014

Print ISBN-13: 9780198716723

Published to Oxford Scholarship Online: August 2014

DOI: 10.1093/acprof:oso/9780198716723.001.0001

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The Contested Legitimacy of Investment Arbitration and the Human Rights Ordeal: The Missing Link

The Contested Legitimacy of Investment Arbitration and the Human Rights Ordeal: The Missing Link

Chapter:
(p.214) 9 The Contested Legitimacy of Investment Arbitration and the Human Rights Ordeal: The Missing Link
Source:
International Arbitration and Global Governance
Author(s):

Horatia Muir Watt

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198716723.003.0009

Structural inequalities within the international investment regime, along with negative distributional consequences, may be perpetuated through arbitration, which is designed to implement the applicable law on a contractual basis. The conundrum addressed here is how to introduce social and economic rights within the very forum whose design has hitherto served to exclude them. It is suggested that the key by which the investment arbitration forum may be opened up to a productive challenge to the applicable legal framework lies outside it, in the home state’s accountability before its own domestic courts for human rights violations by its corporate investors abroad, coupled with horizontal effect. In short, the home state’s enforceable commitment to ensure that the corporations which benefit from the bilateral investment treaty respect third-generation human rights in the co-contracting host state may create the external pressure required for legal contestation to enter the arbitral forum itself.

Keywords:   investment regime, social and economic rights, home state accountability

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