International Arbitration usually called a hybrid form of international dispute resolution, since it blends elements of civil law procedure and common law procedure. When it comes to the issue of consolidation between international arbitration and Human Rights, it has always been the topic of doctrinal debates and controversies. Among so many reasons, one of the reasons for these controversies stems from the fact that human rights law and investment law follow different objectives. Even this statement has merit in relation to socio-economic rights. It is more difficult to make such a tidy demarcation in relation to the inherit rights, first generation rights, such as the right to life which implies the protection against torture or inhuman treatment.
Moreover, no investor should be deemed to have “chosen” the country in which he suffered from inhuman treatment. Such treatment is not foreseeable in advance, especially when the country presents itself as democratic.
The consolidation between international arbitration and human rights is apprehended here through the concept of integrity of Arbitral Proceedings, which is undoubtedly linked to the investor’s right to claim damages for all harm suffered by its investment. This right figures in the dispute settlement clause contained in the BIT at stake.
There are many doubts that arise related to this issue that includes should the investor have been a victim of inhuman treatment from the host State during the arbitral proceedings? Actually, this right would be impacted and, thus, the protection of the investment itself would be impacted. The ultimate question in this respect is to what extent are such emergency measures binding on the Respondent State and what would be the tribunal’s powers in a case of their non-respect. However, it is actually a topic for another day.
Thus, consolidation between International Arbitration and human rights needs to be treated through the protection of the integrity of arbitral proceedings.
This post first appeared on Three Things That Makes An International Arbitration Law Firm Reliable, please read the originial post: here