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Amici Curiae – the Key to Promoting Human Rights
in International Investment Arbitration?
Kateřina Heroutová – PF UK
I. Introduction
The modern system of international investment arbitration built on international
investment treaties started to shape in late 1950s, when the first treaties were
concluded.
1
However, the investors had not properly made use of the protection offered
by these treaties until three decades ago.
2
Then it was revealed that the obligations
which were imposed on thestates by virtue of international investment treaties do
not hover in vacuum outside the system of international law, not interacting with it;
on the contrary, they cross paths with obligations stemming from other international
treaties. One group of such treaties consists of instruments created for the protection
of human rights.
Investment arbitration practice offers several cases where investment treaty rights
and human rights coincided, and also cases where the two
prima facie
contradicted
each other. The possibility of collision soon attracted attention, which resulted, as
Simma put it, in attack on legitimacy on foreign investment protection.
3
Alarm bells
were rang, warning that states’ will to observe human rights may be trampled by fear of
their obligations towards investors.
4
The question how to best promote human rights
in international investment arbitration emerged.
Some scholars state that human rights together with other matters of public and
global interest can be protected through
amicus curiae
submission.
5
This work aims
1
Rudolf Dolzer and Christoph Schreuer,
Principles of International Investment Law (2nd edn, OUP 2012)
(Dolzer and Schreuer)
18.
2
Luke Eric Peterson and Kevin R Gray, ‘International Human Rights in Bilateral Investment Treaties and
in Investment Treaty Arbitration’ (2005) International Institute for Sustainable Development, available
at
<https://www.iisd.org/pdf/2003/investment_int_human_rights_bits.pdf> 5.
3
Bruno Simma, ‘Foreign Investment Arbitration: a Place for Human Rights?’ (2011) 60 International
and Comparative Law Quarterly 573 (Simma) 573.
4
Moshe Hirsch, ‘Investment Tribunal and Human Rights: Divergent Paths’ in P M Dupuy, F Francioni
and E U Petersmann (eds),
Human Rights in International Investment Law and Arbitration
(Oxford
University Press 2009) (Hirsch) 107; Stephan W Schill, ‘Cross-Regime Harmonization through
Proportionality Analysis: The Case of International Investment Law, the Law of State Immunity and
Human Rights’ (2012) 27 ICSID Review – FILJ 87 (Schill) 88; UNHCR, ‘Human rights, trade and
investment Report of the High Commissioner for Human Rights’ (2 July 2003) E/CN.4/Sub.2/2003/9
(UNHCR Report) 3-4.
5
Lucas Bastin, ‘The Amicus Curiae in Investor-State Arbitration’ (2012) 1 Cambridge J Int’l & Comp L
208 (Bastin) 224; Katia Fach Gomez, ‘Rethinking the Role of Amicus Curiae in International Investment
Arbitration: How to Draw the Line Favorably for the Public Interest’(2012) 35 Fordham Int’l LJ 510
(Gomez) 543; Tomoko Ishikawa, ‘Third party Participation in Investment Treaty Arbitration’ (2010) 59
ICLQ 373 (Ishikawa) 402.