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The Nature of Investors’ Rights: A Reply to Martins Paparinskis

Published on October 23, 2013        Author: 

Jessica HowleyJessica Howley is partway through a DPhil at Magdalen College, University of Oxford.

 

In his EJIL article, Martins Paparinskis outlines how the rules of State responsibility, developed in the interstate context, apply in claims between individuals and States in the field of investment law (p 619). He proposes three alternative views one might take of the nature of the ‘rights’ accorded to investors under investment treaties: that they are ‘direct rights’, similar to those found in the regime of human rights (p 622-623); ‘third party rights’, akin to those accorded by treaty parties to third states under Article 36 of the Vienna Convention on the Law of Treaties (p 624); or ‘delegated rights’, where the individual is an agent exercising rights that belong to their home State (p 625).

Paparinskis details the implications of each approach to investors’ rights for various aspects of State responsibility, including for the purposes of reparation, the application of circumstances precluding wrongfulness and the implementation of responsibility (p 619-620), elucidating the practical effects that flow from adopting a particular perspective on investors’ rights. He expressly does not seek to reach a definite conclusion on which of these is the correct approach to take (p 626). He does, however, offer some thoughts on the appropriateness of relying on the human rights paradigm in the investment context.

While noting the functional similarity between many of the rights in the investment and human rights fields, Paparinskis argues (and affirms in this EJIL: Talk! post and a forthcoming chapter available here) that human rights and investment law differ in the key respect that investors choose to become investors, with investment law protections designed to entice an investor to invest in a particular State (p 623). Conversely, one falls under the protection of a given human rights regime not as a matter of choice but simply by virtue of being human. This leads the author to suggest that rights in investment law might be ‘better captured’ by viewing them through the lens of third party rights, rather than from a human rights perspective (p 624).

The purpose of this post is to query the extent to which the choice of the investor provides a useful way of thinking about which of the three models of investors’ rights is most appropriate. Read the rest of this entry…

 
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