From myopia to flashes of clear vision? Deciding interaction and conflict of treaties in investor-state arbitration after Urbaser v Argentina

Ghouri, Ahmad (2019) From myopia to flashes of clear vision? Deciding interaction and conflict of treaties in investor-state arbitration after Urbaser v Argentina. In: Gammage, Clair and Novitz, Tonia (eds.) Sustainable Trade, Investment and Finance - Toward Responsible and Coherent Regulatory Frameworks. Edward Elgar. ISBN 9781788971034 (Accepted)

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Abstract

The common citizenry rights, such as the rights to health, safety and the environment, are frequently at stake in investor-State disputes. Such citizenry rights – now often framed in terms of sustainable development concerns – are protected by many international treaties, as well as under domestic laws and constitutions. When such rights are protected by treaties, they may have a bearing on the subject matter of an investor-State dispute as provided by the Vienna Convention of the Law of Treaties (VCLT) rules on treaty interpretation. However, investor-State arbitration tribunals have struggled to take appropriate account of citizenry rights when deciding on foreign investors rights in investment treaties. This chapter investigates the extent to which investment tribunals are required to consider conflicting rights protected by different treaties made by a State and explores the implications arising from such considerations. The chapter illustrates that the VCLT rules on treaty interpretation provide clear legal bases to consider conflicting rights contained in different treaties. By analysing existing interpretive inconsistencies in investor-State arbitration cases leading to the recent Urbaser award, the chapter argues that investor-State tribunals have not fully benefitted from the relevance, interaction and conflict of rights found in various treaties to support the development of international investment law as a responsible legal and policy framework that adheres to promote sustainability.

Item Type: Book Section
Keywords: Treaty interpretation, investor-state dispute settlement, citizenry rights, sustainable development, arbitration, international investment law
Schools and Departments: School of Law, Politics and Sociology > Law
Subjects: K Law
K Law > K Law in General. Comparative and uniform Law. Jurisprudence > K0140 History of Law
K Law > K Law in General. Comparative and uniform Law. Jurisprudence
K Law > K Law in General. Comparative and uniform Law. Jurisprudence > K0520 Comparative law. International uniform law > K1700 Social legislation
K Law > K Law in General. Comparative and uniform Law. Jurisprudence > K0520 Comparative law. International uniform law > K2400 Arbitration and award
K Law > K Law in General. Comparative and uniform Law. Jurisprudence > K0520 Comparative law. International uniform law > K3581 Environmental law
K Law > KZ Law of Nations
K Law > KZ Law of Nations > KZ6350 Enforced settlement of international disputes
Depositing User: Ahmad Ghouri
Date Deposited: 03 Apr 2019 10:15
Last Modified: 03 Apr 2019 10:15
URI: http://srodev.sussex.ac.uk/id/eprint/82957

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