Home International Economic Law Bilateral Investment Treaties Urbaser v Argentina: The Origins of a Host State Human Rights Counterclaim in ICSID Arbitration?

5 Responses

  1. Thank you for the Article. I expected support from the international community. That’s the world’s future – abstain from saying “unlikely”, “difficult to envisage” when you have no evidence to support such statements. There are plenty of grave human rights violations worldwide committed by investors – open your eyes. When you say: “Article 30 UDHR and Article 5(1) ICESCR” do not support – of course they do, but you read them the wrong way. Did you not read Louis Henkin?
    But for all over: thank you for positivly entertaining the debate!

  2. Francisco Javier Zamora Cabot

    Thanks for your comment,E. Guntrip. And allow me to say that
    a courageous and timely approach to investments and human rights is shown in your award, Professor Bucher, my dear and respected Colleague and friend. Please, do keep on shedding light on these issues of such a great importance.Best regards to both of you. FJZC.

  3. Edward Guntrip

    Prof. Bucher,

    Thank you for your comments.

    I am very supportive of the inclusion of human rights in investment arbitration and see many positive aspects to this award. My concern lies with the use of common Article 5(1) to achieve this aim.

    As to the interpretation of this provision, it is clear that our views differ. I understand common Article 5(1) to perform an interpretative function. That is, a right contained in one of the Covenants cannot be interpreted in a manner that destroys the operation of another right in the same Covenant. This would equally apply to the UDHR and the ECHR, which also contain similar clauses. I cannot see how a foreign investor can use an interpretation of a human right they possess to destroy the human rights of others. Based on this approach, I think it is ‘unlikely’ or ‘difficult to envisage’ this type of provision generating a methodology that can be regularly applied in investment disputes.

    I am not disputing that non-state actors bear an obligation to ensure the fulfilment of human rights. Further, I did not intend to suggest that investors do not cause human rights violations.

    As you state, it is good to stimulate debate on this topic!


  4. John R Morss

    Thankyou Edward Guntrip for this very informative post. It highlights the importance of the rights of populations and of communities, I think. The big picture!

  5. […] detailed analysis of the merits part of the award in Urbaser from human rights perspective, see Edward Guntrip. jQuery("#footnote_plugin_tooltip_2101_1").tooltip({ tip: "#footnote_plugin_tooltip_text_2101_1", […]