I. Introduction
Many students are bewildered by the boundaries of investment treaty law: a field made essentially of state obligations – and correlative investor rights – in which treaties explicitly need to remind investors that they must respect and abide by domestic laws. Students often ask would investors have no obligations otherwise? Later, perhaps in a similar classroom, other or the same students take a business and human rights course. There they find the obligations missing in investment treaties and investor-state dispute settlement (ISDS), but only to learn that investors have responsibilities under international law, not fully fledged obligations, and that any obligation remains vague, general and difficult to enforce. Recently, some investment treaties have included language on business and human rights or corporate social responsibility.Footnote 1 Yet, mastering the languages of these two fields rarely solves the conundrum; the asymmetry remains puzzling, not only for students.
This article aims to critically discuss the divide of the international law on foreign investment into these two subfields, whereby one specializes in strong investor rights and the other focuses on investor guidelines or vague obligations. My claim is that we should see the history of international investment law as about the promotion of investor rights as much as the resistance to investor obligations. I refer to this dynamic as the politics of decoupling. The evolution, separation and practice of investor rights and obligations are grounded in a similar business project, involving organizations such as the International Chamber of Commerce (ICC) and individuals like Royal Dutch Shell’s John Blair. This project brought about a legal imagination that remains relevant today.
The notion of legal imagination builds on Charles Taylor’s concept of social imaginary of our contemporary world, meaning ‘the ways we are able to think or imagine the whole of society’.Footnote 2 In this article, this concept serves to bring together the world-making project of business associations, their networking and strategies, and how the law is implicated in both ideas and practice. Once a legal imagination becomes dominant, it shapes actors and meaning. People argue about the future of investor rights and obligations, discuss possible reforms and resolve disputes in the shadow of this imaginary.Footnote 3
Decoupling rights and obligations is a central aspect of the legal imagination that dominates the international law on foreign investment.Footnote 4 Business associations describe international investment protection not only as a private demand but also as a public need for investors to take their capital overseas. Private foreign investors are concerned about government economic intervention – that is political risk – and demand a sword to counterbalance sovereign power. At the same time, possibly less openly, investors want to be blind to the costs and risks of their activities. Domestic law will inevitably have something to do with their projects, but host states may be less rigorous in enforcing laws to attract foreign investment or may have problems in regulating multinational corporations (MNCs). International law could become an issue, particularly if states were to cooperate to regulate these firms, and perhaps for this reason foreign private investors have insisted on the view that MNCs have no obligations under international law. Business leaders are only willing to assume voluntary guidelines, self-regulation and corporate social responsibility (CSR). International law also becomes a shield.
The sword and the shield are closely related. The lack of corporate obligations under international law represents these actors as outsiders who have no duty to contribute to the wellbeing of the host community beyond doing their business. CSR is described as part of what a responsible business or a good corporate citizen should be about, not what a host country or community is rightfully entitled to demand from corporations.Footnote 5 The lack of investor obligations pre-configures the relations between investors, states and third actors, such as local communities, putting the global over the local. Moreover, by focusing on investor rights, investment arbitrators only concentrate on the investment project and states’ duties, for example, to treat the investment fairly and equitably. The inexistence of investor obligations not only strengthens investor property and contract rights but also occludes a relational approach whereby actors have rights and duties. Such an approach would inevitably place investors closer to the host community, that is, as insiders.
Post-World War II business leaders made significant efforts to ensure a world with international investor rights; yet, their main concern, systematically, was to create a world without obligations.Footnote 6 Investors in the natural resource and infrastructure sectors were truly interested in investor rights in the 1950s and 1960s, but have been less vocal in recent decades. Conversely, most MNCs have and continue to oppose investor obligations strongly. Business and human rights scholars have long highlighted the role of business associations and MNCs in resisting international regulation and promoting, instead, CSR or voluntary guidelines.Footnote 7 From a business perspective, the lack of international investor obligations seems to define the evolution of the international law on foreign investment as much if not more than ISDS. If investor rights hindered states’ ability to gain control of economic resources during decolonization, the lack of investor obligations were for MNCs a means to take advantage of the institutional limitations of some countries and of globalization’s complexities.
As I show below, the arguments and strategies in the discussions over rights and obligations have followed a similar pattern and employ a similar vocabulary. Business associations developed or contributed to developing the blueprints that were taken over by their home states (the Global North) and transformed into investment treaties and arbitral institutions. These states were not always convinced of such proposals, but investors continued pushing for international rights as decolonization and the Cold War threatened their business models in oil and mining.Footnote 8 Similarly, CSR codes and the ICC Guidelines for Foreign Investment (the ICC Guidelines) inspired the OECD Guidelines, the Global Compact and the dominant voluntary paradigm of international corporate responsibility.Footnote 9 During most of this period the strongest advocates against investor rights and for investor obligations were Latin American states. The competing efforts of these and other capital importing countries (the Global South), trade unions and human rights activists are also fundamental to understand the trajectory of the international law on foreign investment.
This article is organized as follows. First, I examine the negotiation of the International Trade Organization (ITO) charter, the campaign against investor obligations towards states, and the emergence of bilateral investment treaties and ISDS as a reaction to decolonization and nationalizations. Next, I look at the backlash against MNCs, the efforts of the Global South and trade unions in the North to impose international investor obligations – including obligations owed to labour – and the response of business associations and the governments of capital exporting countries. In the next section, I review the strengthening of investment treaties, ISDS and CSR. I examine the business efforts to multilateralize investor rights, their failure, and the corporate strategy to bring CSR into the United Nations (UN) to counterbalance anti-globalization movements. In the following section, I focus on the recent reaction against MNCs, as these firms are increasingly named and shamed as responsible or complicit of human rights violations. I discuss the business and human rights movement and how business actors attempt to capture this field to ensure its consistency with investor rights. Finally, I conclude that the boundaries between investment treaty law and business and human rights remain a central part of the dominant legal imagination in this field. At the same time, these boundaries are also contingent and can be reworked.
II. Decoupling Rights and Obligations
How to govern the international economy was a central question post-World War II; many thought – such as the ICC – that ‘world peace, world trade, and prosperity are indivisible’.Footnote 10 In this spirit the United States and Britain dominated the discussions to create the ITO, although Global South countries had an important representation in the negotiations; the most vocal were the 18 Latin American states. These countries sought to ensure that the legacy of colonialism was taken into account and that the ITO charter would recognize political and regulatory space to promote industrial policies. At the request of business organizations, the United States proposed introducing investor rights into the charter, ‘assuming that facilities for development are normally to be obtained from private sources’.Footnote 11 Global South countries agreed but also believed that the regulation of foreign investment was central. In exchange for rights, they asked for investor obligations to host states.Footnote 12
The negotiations between 1946 and 1948 covered both investor rights and obligations. Capital exporting and importing countries had differences in both areas. In relation to rights, the United States and Western Europe favoured the recognition of investor rights, asserting that host states must abide by the minimum standard of treatment when regulating foreign investment (including compensation rules). Otherwise, there is no ‘assurance of security’ for investors.Footnote 13 Latin American countries, however, claimed that foreign investors should be subject to domestic laws and courts (the Calvo doctrine). During the negotiations, another issue emerged around the recognition of certain state rights under international law – and correlative investor obligations – related to the control and behaviour of foreign investors.Footnote 14 This question was relatively new.Footnote 15
The conflicting views did not prevent the conclusion of a draft of the ITO charter in 1948 (the ‘Havana Charter’). This text recognized rights and obligations for investors and states. Article 11 expressed that ‘no Member shall take unreasonable or unjustifiable action’ against foreign investors and their projects. Article 12 granted host states the right to control and decide the conditions of foreign investment. It also authorized measures to ensure that foreign investors did not interfere in ‘internal affairs or national policies’.Footnote 16 These rights arguably existed under domestic law, but Global South states demanded their recognition under international law.
Business organizations were disappointed with the Havana Charter. During the negotiations, the ICC Honorary President, Arthur Guinness, told negotiators that they were creating ‘a rule of the road for world trade, and we businessman represent the users of the road and also those who produce the revenue to maintain the road’.Footnote 17 These organizations had recommended to include investor rights in the ITO charter but turned against the draft after they saw the outcome of the negotiations. The ICC had no serious reservations over the broad definition of investor rights, although many thought it was too general, but strongly opposed the rights granted to states (and the correlative obligations imposed on foreign investors).Footnote 18 The ICC was concerned that these provisions were ‘drafted in such vague and ambiguous language that they may easily become a screen behind which many arbitrary and discriminatory measures can be taken’. The door remained ‘opened to uncertainty and controversy’.Footnote 19
The ICC was divided. Some of its members continued to favour the ratification of the ITO charter, regarding the draft as the best possible outcome. But opposition grew stronger especially because of the negativity of the US Council of the ICC. One of the ICC’s rapporteurs, Richard Gettell, opined that ‘foreign investments were treated almost as an obligation of mature countries, even though unprotected’.Footnote 20 ICC members from the United States, notably Philip Cortney, believed that the charter ‘would actually block future ICC efforts’.Footnote 21 In a crucial meeting held in Paris, in early 1950, the ICC considered that ‘opinions among businessmen on the merits and the demerits of the charter are too divided’ and ‘[f]ull freedom is therefore left to each of the national committee in the field’.Footnote 22 Ultimately, the US administration decided not to ratify the Havana Charter de facto, killing the ITO.
Meanwhile, the ICC had adopted a proactive strategy, preparing a code of investor rights – the 1949 ICC Code of Fair Treatment for Foreign Investments (the ICC Code) – and developing a narrative to oppose the rhetoric that dominated the UN. Essentially, the ICC attacked the idea that foreign investors are agents of neocolonialism and that aid was the solution to problems of development. For the ICC, inter-governmental loans were more prone to interference than private investment, and foreign investors had been ‘able to interfere politically […] only when they had the support of their own government’.Footnote 23 Business leaders reiterated that they were willing to contribute to world development but asked, in exchange, for a ‘climate of confidence and stability encouraging to the potential investor’. The problem was ‘political insecurity’, including ‘threat of war’, ‘sudden changes in regime’, ‘exchange control’, ‘expropriation and nationalization’, and ‘the mass of laws and regulations discriminating against and thereby discouraging the foreign investor’.Footnote 24 The ICC Code was pitched to the international community, individual governments and the UN, as the appropriate set of investor rights – and state duties – to ensure the smooth flow of capital flows. Crucially, this project decoupled investor rights from obligations.
The ICC code was never given international consideration, either multilateral or bilateral, but it did set the bar for investor expectations. The early 1950s were not fertile for this business imaginary, as the United States was concerned with the Communist threat and Global South countries were worried about neocolonialism.Footnote 25 However, this context did not discourage investors who insisted on international investor rights and no obligations. In 1961, Pieter Kuin, an economic adviser to Unilever, wrote that ‘public opinion tends to identify economic development with international aid, technical assistance and government finance. This, of course, is wrong.’Footnote 26 For the last fifteen years, he observed, the ICC had been promoting the cause of foreign private investment and the ICC Code or similar investor rights under international law. According to Kuin, regrettably, the Global South did exactly the opposite by nationalizing investments in China, Egypt, Indonesia and Cuba.
Kuin was not alone. These nationalizations had been a wake-up call for business leaders in Western Europe. In the late 1950s, they networked in different groups, created associations, and put together private proposals for the international recognition and enforcement of investor rights.Footnote 27 The most influential of these projects was the joint initiative of Hermann Abs and Hartley Shawcross. Abs was a director of the Deutsche Bank, who also sat on the board of several German firms, including Deutsche Shell. Shawcross was a former UK politician and prosecutor in the Nuremberg trials who served as general counsel of Royal Dutch Shell. The two had significant interests in the protection of foreign investment in the natural resource and oil sector, particularly in the decolonization context. Together with other financiers and lawyers from Western Europe, notably Elihu Lauterpacht, they prepared a treaty model that only included investor rights and granted investors ISDS (the Abs-Shawcross draft).Footnote 28 Eventually, the Abs-Shawcross draft was backed by many business leaders and associations, including the ICC. It was submitted to the consideration of the Organization of the European Economic Cooperation by West Germany in the late 1958 (the predecessor of the OECD).
The main critiques against the Abs-Shawcross draft were the level of protection, the vagueness of the text and the lack of investor obligations. Several scholars noted that some state obligations, such as fair and equitable treatment, implied a regime ‘far more protective’ than international law or the Constitutions of Western countries.Footnote 29 Also, the provisions of the Abs-Shawcross draft were vague and ambiguous; however, for business lawyers this issue was not serious when concerning investor rights. It was expected that through ISDS an appropriate ‘case law’ would gradually emerge.Footnote 30 Lastly, states received nothing in exchange for these obligations.Footnote 31 Shawcross responded that states could always insert investor obligations in the contracts, if they wanted.Footnote 32 The International Law Association similarly pointed that other human rights could be protected using international arbitration in the future.Footnote 33
ISDS turned out to be one of the most problematic aspects of the project. West Germany was unsure of this provision, and this remedy was omitted in its first bilateral investment treaties.Footnote 34 The question of international arbitration was taken over by the World Bank, which decided to negotiate the creation of an international institution specialized in the resolution of investment disputes. This project was led by the banks’ general counsel, Aaron Broches, and counted on support of business leaders, such as Abs and Shawcross, and the participation of lawyers from Royal Dutch Shell, John Blair, G.W. Haight (also ICC) and L. Sandberg.Footnote 35 These negotiations culminated with the creation of the International Centre for the Settlement of Investment Disputes (ICSID) in 1965. The most significant opposition to this project came again from Latin American countries (their negative is known as the ‘No of Tokyo’).
During the late 1950s and 1960s, the Abs-Shawcross draft, the discussions at the OECD and ICSID occupied the space of what investors expected in terms of foreign investment governance.Footnote 36 Essentially, these were strong rights and international arbitration. Business associations in the US, such as the American Bar Association, observed that Friendship, Commerce and Navigation (FCN) treaties had important limitations and investment treaties and ISDS should be preferred instead.Footnote 37 Eventually, the first investment treaty with an ISDS clause was signed between Chad and Italy in 1969, and most Western European states began concluding similar treaties with capital importing countries.Footnote 38 The US started its own bilateral investment treaty programme in 1977. Today we may regard this evolution – including the decoupling of investor rights and obligations – as the expected course of events; yet, things were perceived differently in the 1960s.Footnote 39 US expert Stanley Metzger observed that the Abs-Shawcross project ‘would not have widespread appeal and is, in consequence, a nonstarter’. In his opinion, these business voices proposed ‘unrealistic codes of private foreign investment’.Footnote 40
III. Making Governance Gaps
The debate over investor rights and obligations continued in the 1960s and 1970s. The two central issues were the nationalization of natural resources and the calculation of compensation, which were heatedly discussed and only partially resolved by the 1962 UN General Assembly Resolution on the Permanent Sovereignty over Natural Resources. The outcome was a comprise between the Global North and the Global South: states’ right to nationalize was recognized under international law but compensation had to be provided. The calculation of compensation remained unclear, however, and both camps continued to defend their positions fiercely, among others, through bilateral treaty-making.Footnote 41
The situation changed by the late 1960s as criticism against MNCs became widespread.Footnote 42 In 1969, at a UN meeting held in Amsterdam, capital importing countries manifested that MNCs were agents of neocolonialism seeking excessive profits. Meanwhile, trade unions in the US and Europe were alarmed by the incipient internationalization of production and the weakening of their bargaining power.Footnote 43 States everywhere reacted to this situation using their regulatory authority. They effected nationalizations or implemented tax, anti-trust, performance requirements or technology transfer measures.Footnote 44 Governments insisted that they had the authority to regulate foreign investment under the territorial principle, while noting that investors ‘should behave as good citizens of the host country’ understanding ‘the needs, problems and interests of the host country’.Footnote 45 In addition to tensions over nationalizations – between the Global North and the Global South – there were increasing inter-state conflicts concerning the extraterritorial effects of public regulations, such as competition laws.
The governance gap created by the lack of international rules on foreign investment fuelled the attack against MNCs. In the 1970s, there were calls for international action and reform. Scholars increasingly agreed that international law should define investor rights and obligations, while states should also create appropriate institutions to coordinate national regulations.Footnote 46 Some even feared ‘Investment Wars’.Footnote 47 Goldberg and Kindleberger recommended the creation of a General Agreement on MNCs covering taxation, balance of payments and incentives. A dispute settlement system, like that of the GATT, would not render binding decisions, but the authors trusted that its decisions would become the norm through the years.Footnote 48 The labour movement also favoured international action. European unions brought the question to the International Labour Organization (ILO) first and later focused their efforts on the European Economic Community (EEC). Their goal was to create international labour rights of information and consultation – and correlative investor obligations.Footnote 49 The tipping point of the tensions was the political interference of US MNCs in Chile during Salvador Allende’s administration, which culminated in a coup against the democratically elected government in 1973. A year before, Allende had denounced this interference before the UN.Footnote 50
The UN decided to set up a Group of Eminent Persons (GEP) to study the impact of MNCs and consider policy options, including the desirability of a general agreement on MNCs and a code of conduct on foreign investment. The GEP represented ‘a rainbow of views’ from governments and business but included no member from trade unions.Footnote 51 Their opinion was only represented by one of the two the consultants, the other was Raúl Prebisch.
Business organizations opposed these proposals, affirming that they would discriminate against MNCs and disrupt investment flows and development. As in post-World War II, the ICC led the campaign against investor obligations. But the ICC was divided over how to face these regulatory pressures. Some business leaders thought that the criticism was unwarranted; accepting international obligations was an indication that foreign investors were guilty of interfering in domestic politics or avoiding taxes through transfer pricing. They claimed that there was no rationale to have special rules for MNCs.Footnote 52
On the other side, there was a growing consensus in favour of voluntary guidelines as a mechanism to occupy the agenda and resist public regulation. In 1952 the Rockefeller Committee had proposed the US Council of the ICC to prepare a code of conduct for MNCs whereby firms would accept to behave according to certain precepts on a voluntary basis. The precepts included respecting domestic laws and accepting measures, such as joint ventures, that would contribute to host country development. The ICC considered the idea but dropped the project in 1954.Footnote 53 However, the proposal was re-evaluated in the late 1960s as a response to increasing regulatory pressures. The ICC asked Sidney Rolfe – former director of the Atlantic Council – to prepare a report that would serve as a basis for discussions to be held in Istanbul in 1969. The report, entitled The international corporation, with an epilogue on rights and responsibilities did not provide a clear answer to the question of rights and obligations, other than insisting that foreign investment is not charity and that arbitration should be the preferred mechanism to resolve disputes. In Rolfe’s view, corporate responsibility to behave as good citizens should be considered against their right to a ‘quiet enjoyment’ of their investments.Footnote 54 This was the quid pro quo.
In Istanbul, there was still disagreement over the idea of a code of conduct. The leading voice for a code was Shinzo Ohya, a Japanese former minister and executive, who proposed a set of guidelines similar to those considered in the early 1950s. The difference between Ohya and his critics was ultimately about the level of freedom of action of MNCs; Ohya criticized the view that ‘economic liberalization can only be ensured by allowing international corporations freedom of action’.Footnote 55 His reasoning was that while foreign investors were worried about ‘political uncertainty’ in host states, the international community had some doubts about investors’ conduct. If host states made ‘all efforts’ to protect foreign investment, then investors should also consider a ‘Code of Behavior for International Corporations’.Footnote 56
Eventually, Ohya and others convinced the ICC, which recommended further action. This business organization set up a special committee on MNCs in the charge of Wilfrid Baumgartner (Conseil Économique et Social). This committee prepared and submitted a report on technology transfer to UNCTAD in 1972, and also tasked a special group with drafting guidelines for foreign investment. The group included former Unilever adviser Pieter Kuin and Royal Dutch Shell’s John Blair.Footnote 57 Kuin and Blair defended international investor rights but also argued that firms should behave as good corporate citizens. Kuin noted that MNCs should develop ‘respect for other nationalities and cultures’,Footnote 58 while Blair was regarded as ‘very sympathetic to the ideas of developing States’.Footnote 59 Quite recently, an international law practitioner described Royal Dutch Shell as an ‘enlightened corporation’ during 1960s and 1970s; this was thanks to Blair’s vision.Footnote 60
The resulting 1972 ICC Guidelines articulated a business and voluntary vision of investor responsibility. Their preamble noted that MNCs were expected to adapt to national development plans in a context of increasing global ‘interdependence’. This responsibility was developed further into specific precepts. For instance, foreign investment should ‘fit satisfactorily into the economic and social development plans and priorities of the host country’, while investors should ‘examine favourably’ proposals for joint ventures and ‘respect the national laws, policies and economic and social objectives’. Other precepts referred to corporate conduct towards labour.Footnote 61 In an attempt to influence the ongoing UN process, the ICC submitted the guidelines to the OECD looking for support. The OECD Business and Industry Advisory Committee greeted the proposal, observing that capital importing countries, in exchange, should ratify investment treaties and join ICSID.Footnote 62 The OECD development committee was less impressed, however, finding that the text was not balanced and missed the ‘political dimension of foreign investment’.Footnote 63 In a meeting in Caracas, in 1973, Latin American countries also rejected the ICC guidelines, observing that they continued to oppose arbitration and international investor rights. In their view, foreign investors ‘must ensure that [their projects] conform to national economic and social objectives’.Footnote 64
These setbacks did not change the strategy of the ICC and business leaders. The GEP organized sessions with the CEOs of the most influential MNCs, who strongly backed the ICC Guidelines and ISDS. Executives from Shell and Exxon insisted that the ICC Guidelines were the best option when it comes to investor obligations, while states should sign up to investment treaties and the ICSID Convention.Footnote 65 Fiat’s Gianni Agnelli made the same points, insisting that:
a binding multilateral agreement […] in the form of a ‘GATT for investment’ does not seem practical at the moment. Instead, the idea of developing a voluntary code on the rights and responsibilities of the multinational corporations seems to be an attractive one. The ‘Guidelines for foreign investment’ drafted by the International Chamber of Commerce represent a good beginning.Footnote 66
In 1974, the GEP concluded that the international community should negotiate a general agreement on MNCs. It highlighted that the relevance of such a project was already noted during the negotiations of the ITO charter.Footnote 67 Establishing a commission to study MNCs, the future United Nations Centre on Transnational Corporations (UNCTC), was a fundamental step in this direction. The GEP also recommended the elaboration of a code of conduct containing rights and obligations for states and investors alike. For the GEP, the provisions of the code would amount to recommendations: they would ‘act as an instrument of moral persuasion, strengthened by the authority of international organizations and the support of public opinion’.Footnote 68
Later in the same year, the UN General Assembly approved by a wide majority – but with the strong opposition of capital exporting countries – the Charter of Economic Rights and Duties of States (CERDS). The CERDS was part of the attempt of Global South countries to establish a New International Economic Order and reimagine the rules of the global economy. Its primary focus was on the rights and duties of states and correlative investor obligations.Footnote 69 The CERDS brought together the view that host states have the right to nationalize and regulate investments, including defining the amount of compensation, with the premise that regulating MNCs requires multilateral cooperation. This project was conceived by the Mexican delegation, in 1972, and several Latin American diplomats provided inputs in the early stages of the initiative.Footnote 70 Contemporary Latin American scholars, like White and Correa, agreed with their US and European counterparts that MNCs sometimes operated in ‘no man’s land’; however, they observed that some of their proposals dealt with the conduct of MNCs affecting Global North countries only. White and Correa described voluntary guidelines and information centres as ‘neoliberal’ proposals, noting that the provisions of the CERDS offered a better response to the needs of the Global South and the extraterritorial effects of MNCs.Footnote 71
If business leaders opposed a ‘GATT for investment’, their reaction against CERDS was much stronger. They denounced the charter as a direct attack to private enterprise, insisting that it had no legitimacy under international law, among others, because capital exporting countries had voted against the initiative.Footnote 72 Blair underlined that the CERDS was a recommendation, enjoyed limited support even among the Global South, and was not the outcome of protracted negotiations. Crucially, he insisted that ‘[a] far more relevant approach and certainly an obvious source of international law are the bilateral treaties for the reciprocal protection of foreign investment, of which well over one hundred have been concluded between developing and industrialized countries’.Footnote 73
Capital exporting countries’ strong rejection of CERDS moved the centre of the discussion to the UN and the code of conduct negotiations. Business organizations feared that this process could conclude in the creation of international investor obligations. To face this threat, they joined forces with capital exporting countries and promoted the negotiation of a set of voluntary guidelines at the OECD, following the example of the ICC Guidelines. BIAC defended the OECD as the right forum for these discussions, noting that the EEC was too narrow while at the UN there was ‘too great a divergence of approach and interests’.Footnote 74 At the OECD, instead, there was a greater likelihood of ‘finding a common approach and reaching balanced conclusions, considering not only malpractices but also benefits conferred by MNCs’.Footnote 75 Indeed, the negotiations began in 1975 and were rapidly concluded in 1976 despite ‘positions which were at the outset markedly divergent’.Footnote 76 The 1976 OECD Guidelines for MNCs and Labour Relations represented a ‘calculated compromise’ to address the governance gap created by MNCs.Footnote 77 Global North governments greeted the initiative at the OECD but European trade unions were disappointed.Footnote 78 Neither the ILO Tripartite Declaration, adopted in 1977, was satisfactory for union leaders, as it did not recognize corporate-labour negotiations beyond the national level.Footnote 79
By the end of the 1970s, the disagreement between Global North and Global South countries or between MNCs and labour remained unresolved.Footnote 80 These tensions are often characterized as a conflict between investor rights and obligations or between regulation and no regulation. Capital exporting countries demanded strong investor rights, and just offered voluntary investor standards; capital importing states requested strong investor obligations but offered only voluntary state guidelines. Similarly, MNCs wanted to remain unregulated internationally while labour aspired to bring collective bargaining to the regional or global level. However, these positions also represented a broader competition of world-making projects: one in which MNCs would reconfigure states and another in which states would cooperate to discipline global corporate ‘abuse of power’.Footnote 81
IV. The Neoliberal Consensus
The conditions that facilitated the negotiation of a code of conduct for states and MNCs changed quickly in the 1980s. The code remained under negotiation at the UN, and the EEC continued considering some of the trade unions’ proposals. However, business had taken the challenge seriously and their efforts started to pay off. Some argue that business associations were not well organized in the late 1960s, but this problem was addressed in the next decade with the creation of Rockefeller’s Trilateral Commission, CEOs coordination, and the active role of the ICC and BIAC in international policy-making. This business collective insisted on free trade, it just lacked a ‘binding ideological force’.Footnote 82
Neoliberalism provided this force. Tapping on the neoliberal toolkit allowed organizations like the ICC to move into the offensive, as neoliberal ideas reconfigured policy debates.Footnote 83 The rationale for state and labour rights – and investor correlative obligations – was that the development contribution of foreign investment depended on joint ventures, performance requirements, technology transfer and trade unions. To be a good corporate citizen required accepting appropriate regulations; even the ICC guidelines were pitched against this policy imaginary. Neoliberalism disrupted this thinking by highlighting that to be a good corporate citizen was to take good business decisions while states should attract and protect foreign investment. Instead of regulating capital, governments were expected to liberalize and entice investors through friendly business environments and incentives.Footnote 84 Trade unions were mainly an obstacle. Notably, this policy approach had the advantage of reducing conflicts of jurisdiction and inter-state tensions; governments just had to roll out diverging and unnecessary regulations.
The neoliberal turn, the end of the Cold War and global business coordination weakened the efforts to impose international obligations on foreign investors. Capital exporting countries and the ICC lobbied the UN to stop the code of conduct negotiations; BIAC put similar pressure over the OECD to take action. Ultimately, the negotiations of the code of conduct were discontinued in the early 1990s, and so were the discussions at the EEC. The UNCTC was disbanded and the UN was reformed to fit into the new economic consensus.Footnote 85
The policy and legal focus shifted completely to investment treaties and ISDS. The negotiation and ratification of these treaties became part of the policy mantra for any country that wanted to attract foreign investment and ‘catch up’ with globalization. Not only the OECD and the World Bank promoted this view, the UN and UNCTAD also favoured this policy approach in the 1990s.Footnote 86 The UN co-authored with the ICC one of the first publications on bilateral investment treaties.Footnote 87 UNCTAD facilitated investment negotiations in the 1990s, organizing nine rounds of meetings in Geneva – also known as ‘mass-weddings’ – that resulted in 160 investment treaties. Through the 1970s and 1980s, Latin America states had remained the last bastion of resistance to ISDS. In the 1990s, however, this position changed quickly, as most of these states ratified investment treaties and joined the ICSID Convention. The only notable exception is Brazil, which signed but never ratified these agreements.
Through the 1990s business organizations continued promoting investment treaties and ISDS but now concentrated their efforts on the multilateral level. The US Council of the ICC attempted to bring the issue to the Uruguay Round of the GATT, but capital exporting countries thought it would be too controversial. Instead, the ICC took international investor rights to the OECD. The ICC and BIAC had a pivotal role in the launch of the Multilateral Agreement on Investment (MAI) discussions. The ICC’s ‘Multilateral Rules for Investment’ report of 1996 became the blueprint for the first draft of the MAI.Footnote 88 After the failure of these negotiations, in 1998, the ICC insisted on the importance of consolidating investment liberalization and strong investor rights multilaterally at the WTO.Footnote 89
This new landscape reinforced the decoupling of investor rights from obligations. Business actors repackaged discussions of investor obligations into codes of conduct and voluntary guidelines. The case of Nestlé and powered milk illustrates this corporate strategy. In the 1970s, Nestlé was accused of deceptive market practices to promote its sales in Africa, which brought about the outrage of activists in North America and Europe. The firm dealt with these criticisms by elaborating a code of conduct with the support of the World Health Organization and UNICEF in 1981. The problem was internalized into Nestlé’s operation preventing the need for public regulation.Footnote 90 While states signed investment treaties, many MNCs drafted codes of conduct shifting the conversation from investor obligations into CSR. To be a good corporate citizen no longer required adaptation to national development plans; the idea of having such a plan was in fact an anathema to neoliberal policies. CSR focuses on global social expectations in areas such as transparency, human rights and the environment, which firms have to meet for reputational reasons. CSR represents corporate responsibility as a private and apolitical tool geared towards practical effects instead of so-called ideological demands.Footnote 91
In several instances, this CSR strategy was employed to face globalization mounting criticisms. Rowe explains that business was concerned about the 1992 UN Conference on Environment and Development in Rio de Janeiro, which they perceived as a ‘a threat to the forward march of neoliberalism’.Footnote 92 The UN had asked Peter Hansen and the UNCTC to prepare a report for the occasion, but Japan and the US opposed the move. Hansen observed that they ‘made it quite clear that they were not going to tolerate any rules or norms on the behavior of the TNCs’.Footnote 93 In its place, the UN asked the World Business Council for Sustainable Development (WBCSD) to provide recommendations. Karliner et al explain that the WBCSD worked together with the ICC to ensure that any reference to investor duties was presented in terms of self-regulation and CSR only.Footnote 94
Capital exporting countries and business organizations did not shut down resistance completely, but they remained in control of the agenda. Civil society pushed against the multilateral projects on investment liberalization and protection – mainly on environmental grounds – achieving important victories such as the demise of the MAI negotiations.Footnote 95 However, the OECD quickly reacted to dissipate criticisms by proposing an upgrade to the OECD Guidelines on MNCs; a move endorsed by the ICC.Footnote 96 The review was finalized in 2000, incorporating recommendations on social and environmental issues. The voluntary precepts now referred not only to state and labour interests but also to other social concerns. These recommendations were in line with the premise that firms have to adapt to social expectations, not to national economic plans. The 2000 upgrade also sharpened and clarified the role of national contact points (NCPs), which were created in 1984. Although the OECD Guidelines remained a set of voluntary recommendations, home states committed to liaison with firms through the NCPs to encourage compliance with the guidelines.Footnote 97
The opposition to the MAI was not the only act of resistance against neoliberalism in the 1990s. The anti-globalization demonstration in Seattle in 1999 – also known as the ‘Battle of Seattle’ – was a major event. This mobilization blocked the WTO ministerial meeting and sent shockwaves into business organizations. ‘[R]estoring the momentum of trade liberalization’ became their central objective. Something had to be done to counter the ‘growing globaphobia and rising criticism of multinational business that poses a special challenge to the ICC’.Footnote 98 Again, business associations planned to remain in control of the agenda by presenting CSR as a suitable response to social expectations and criticisms. The ICC believed that the OECD Guidelines were ‘the highest set of standards out there […] the most important code of conduct for business in the world’, but still joined efforts with the UN to develop the Global Compact or ‘what is sometimes termed the “UN–ICC Global Compact”’.Footnote 99
After its reorganization the UN was the ideal partner for this project. The UN would legitimize the initiative like no other international institution, and its vision on investor rights and obligations was aligned with that of business associations. UN Secretary-General Kofi Annan announced the creation of UN Global Compact at the World Economic Forum in early 1999. The initiative was officially launched at the UN Headquarters in New York City in 2000. The Global Compact consists of broad voluntary recommendations on human rights, labour, environment and anti-corruption (there is no reference to national economic plans or state rights). This project counted on the explicit support of the ICC, the WBCSD and MNCs such as Deutsche Bank, Royal Dutch Shell and Rio Tinto;Footnote 100 firms that played a central role promoting investment treaties and ISDS some decades earlier. Like the narrative underpinning the investment treaty project, the Global Compact connects business short-term goals with the long-term aspiration of development.
The imperative to attract foreign investment and CSR are ultimately two sides of the same politics of decoupling. Both represent a world in which foreign private investors are the main promoter of development, and states’ role is limited to facilitate their activity and curb negative externalities if absolutely necessary. Firms are expected to internalize human rights and environmental concerns to ensure their operations are ethical and beneficial for society. CSR becomes a means to seek for the support of local communities and to placate the critique of environmental activists. In the case of the Roșia Montană mining project in Romania, Burja and Mihalache claim that the foreign investor (Gabriel Resources) relied on CSR in an ‘aggressive way’ to achieve these two goals.Footnote 101
Moreover, investment treaties and CSR are consistent and mutually reinforcing. CSR serves to address criticisms against the investment treaty regime itself, providing a notion of investor obligations compatible with strong investor rights. Since 2010, several countries have included CSR standards in their treaties. In Latin America, the most relevant cases are Brazil, Colombia, Argentina and the treaty of the Pacific Alliance; other important cases include Canada and the European Union.Footnote 102 The actual implications of this trend remain unclear, however. CSR standards cannot be enforced, and so far they have had no impact on the interpretation of state obligations under ISDS. As Choudhury explains, these provisions ‘confirm that foreign investors have human rights responsibilities but enable investors to self-regulate how they and their investments will comply with such responsibilities’.Footnote 103
V. Business and Human Rights – or Business of Human Rights?
In the 1970s, discussions between business associations and capital exporting and importing countries were comprehensive but neglected central actors in foreign investment relations. Trade unions played a role in these debates but were side-lined on important occasions, such as the GEP. However, the actors who effectively had no participation in these discussions were the local communities impacted by large-scale natural resource and infrastructure projects. These communities of peasants, indigenous peoples or artisanal miners had no say in the policy or legal debates even if their rights were affected by investors and states alike – particularly their land rights. Essentially, neither investors nor states had a strong interest in their situation. Foreign investors and capital exporting states focused on extracting resources and making profits, while most host governments embraced a process of industrialization and assimilation.Footnote 104 In 1974, the GEP already noted that under the existing rules the main winners were transnational and national elites.Footnote 105 Local communities were expected to be the losers, integrated into the global economy.
The risk of human rights violations was significant in this context. One of the first cases that attracted the attention of activists involved Western oil companies in Nigeria, notably Royal Dutch Shell, which since the 1970s had polluted the Niger Delta and severely affected the livelihoods of the Ogoni people. The case gained global notoriety in the mid-1990s after the execution of Nigerian playwright and activist Ken Saro-Wiwa. The role of MNCs during apartheid in South Africa also grabbed the global spotlight. This case was ‘quintessentially a BHR issue; companies operated in complicity with the human rights violating government simply by complying with its laws and policies’.Footnote 106 The Bhopal gas disaster in 1984 had a similar impact on the policy and academic debates. This catastrophe opened a discussion over how to make MNCs responsible for their conduct; Union Carbide Corporation has never compensated the victims in full.
The business and human rights movement emerged as a response to these and other cases of human rights violations and the lack of reparations, not as a demand for state or labour rights – and correlative investor obligations. Frustrated with the lack of accountability of governments, human rights activists shifted their attention to business and their human rights responsibility under domestic and international law. The basis of this move was that MNCs are sometimes involved in these violations directly or indirectly, as accomplices of host states. Wettstein observes that there was an overwhelming concern in the 1990s that states were losing control of MNCs and international action was necessary.Footnote 107 The literature put the focus on the ‘governance gaps’,Footnote 108 although often omitting that MNCs had an active role in creating and preserving these gaps, for instance, by promoting the politics of decoupling.
In the early 2000s, while the ICC was working together with the UN Secretary General on the Global Compact, the UN Sub-Commission on Human Rights decided to develop a human rights-based code of conduct for MNCs. A group of experts finalized a draft by mid-2003 following a structure radically different from the Global Compact or other CSR projects. The ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (known as the Norms) attributed direct human rights obligations on MNCs in relation to the ‘human rights recognized in international as well as national law’.Footnote 109 The Norms implied a paradigmatic shift by internationalizing business human rights obligations and creating a global regime of public responsibility.
The business reaction against the Norms was highly articulated. The actors that promoted the 1972 ICC Guidelines, such as the ICC and Royal Dutch Shell, criticized the Norms and highlighted their support for the Global Compact.Footnote 110 The ICC described the Norms as ‘counterproductive to the UN’s ongoing efforts to encourage companies to support and observe human rights norms by participating in the Global Compact’.Footnote 111 For the Secretary General of the ICC, Maria Livanos Cattaui, the discussion over the Norms overlooked that ‘more often than not [MNCs] are part of the solution to human rights challenges rather than part of the problem’.Footnote 112 Business organizations requested the UN Commission on Human Rights to define that ‘that the duty-bearers of human rights obligations are States not private persons (including private business persons)’.Footnote 113
The UN reacted to these challenges, among others, by appointing John Ruggie as Special Representative for Business and Human Rights in 2005. Quite early in his mandate, in 2006, Ruggie distanced himself from the Norms observing that there is ‘little authoritative basis in international law – hard, soft or otherwise’ to assert that MNCs have binding international obligations.Footnote 114 Instead, he proposed a consensus and cooperation approach. Martens notes that business organizations such as the ICC and BIAC welcomed this move and cooperated with Ruggie’s mandate.Footnote 115
In 2008, Ruggie presented his ‘Protect, Respect and Remedy” framework. The document recognized that sometimes MNCs are involved in human rights abuses and that these firms may put pressure on states when they attempt to protect local rights; for instance, they may threaten the government to launch an ISDS arbitration. However, Ruggie clarified that firms have no international obligations, only a responsibility to respect human rights. This responsibility is not based on law but on social expectations and ideas such as good corporate citizenship and social licensing.Footnote 116 Business associations were satisfied with this new framework, but criticized Ruggie’s proposal to create a global ombudsperson. They observed that this mechanism would do nothing ‘to address the lack of access to effective and impartial judicial mechanisms’.Footnote 117 Ruggie took on board this criticism, and focused on due diligence as a means to ensure that firms do not violate human rights. Firms would have to assess and produce information over activities that could lead to human rights violations. This implied a shift from ‘naming and shaming’ to ‘knowing and showing’.Footnote 118
Building on the ‘Protect, Respect and Remedy’ framework, Ruggie finalized in 2011 the Guiding Principles on Business and Human Rights (the ‘Guiding Principles’). These principles define the role of states, business and the question of remedies. Firms ‘should respect human rights’, ‘should avoid infringing human rights’, and ‘should address averse human rights impacts with which they are involved’.Footnote 119 These social expectations, the commentary explains, are not legally binding but exist independently of domestic laws or host state policies. The Guiding Principles were welcomed by capital exporting states and business organizations; the latter observed that the Guiding Principles distinguish between the roles of states and firms, preferring a ‘practical and achievable’ approach to the creation of international obligations. The ICC and BIAC also expected that ‘once adopted, the Guiding Principles should be left unchanged for a number of years’.Footnote 120 But Global South countries and NGOs were less enthusiastic. According to Carlos López, the Guiding Principles have problems concerning enforcement and their evolution. The lack of a global enforcement mechanism – such as an ombudsperson – limits compliance and the possibility to develop vague precepts through interpretation; precisely what ISDS made possible concerning investor rights.Footnote 121
The Guiding Principles have attracted different opinions from the scholarship. For many, they recognize that firms may be involved in human rights violations, and should take appropriate measures. Others believe the Guiding Principles move the business and human rights field closer to CSR. Deva suggests this shift suits investors and an emerging business and human rights industry of consultants.Footnote 122 Business actors represent investor obligations as too political, constituting an impractical framework that could hinder their contribution to the Sustainable Development Goals (SDGs). Indisputably, the Guiding Principles have been successful at the policy level, but their impact on the ground has been more limited.Footnote 123 In fact, firms like Royal Dutch Shell have relied on these principles to argue in court that they are not bound by international law obligations.Footnote 124
Meanwhile, various actors continue to demand binding investor human rights obligations and a global enforcement mechanism. Latin America, again, played an important role. At the initiative of Ecuador, the UN established a group tasked to elaborate a Legally Binding Instrument (LBI). This process has made important progress thanks to the support of South Africa and civil society organizations, and despite the opposition of capital exporting countries and business associations.Footnote 125 The LBI aims to ensure the consistency between human rights and investment treaties (Third Draft, Article 14.5).Footnote 126 The notion of due diligence also plays a central role in this initiative (Third Draft, Articles 6.3 and 6.4), indicating that this corporate obligation is arguably evolving towards a more robust standard of conduct.
Business associations unsurprisingly oppose the LBI, but in an interesting turn of events, they have favoured the creation of international arbitration rules for resolving business and human rights disputes. The Hague Rules on Business and Human Rights Arbitration is an initiative of the Center for International Legal Cooperation, which has been enthusiastically received by business associations. In a note for the ICC, Member of the Working Group and Drafting Team Jan Eijsbouts explains that ‘[i]nternational arbitration is taking a step forward as part of the global movement to protect human rights’.Footnote 127 Arbitration would offer an impartial and fast dispute settlement mechanism, and the parties would be able to choose arbitrators with expertise in business and human rights. Moreover, arbitration would avoid the problem of conflicting jurisdictions and ensure the enforceability of the decision thanks to the 1958 New York Convention. Whether firms will actually consent to arbitration or this forum will become an effective remedy for victims remains debatable; local communities reasonably prefer a jurisdiction that is geographically and culturally closer (as much as investors).Footnote 128 Ultimately, this initiative shows how the arbitration community – just like the business community – represents itself as part of the solution to globalization’s challenges. If CSR can replace public regulation, perhaps arbitration can replace public adjudication, filling the governance gaps that business leaders and corporate lawyers have contributed to creating in the first place.
The main difference between CSR and BHR is that the latter is not necessarily consistent with investor rights and could pose a risk to the politics of decoupling. The actors that support ISDS generally oppose the incorporation of direct obligations in investment treaties and support arbitration as an adequate means to resolve disputes; meanwhile, many of the people who call for international investor obligations do not favour CSR standards and advocate for the termination of ISDS. Some states have introduced direct investor obligations in their treaties, but capital exporting countries resist this reform strategy.Footnote 129 Morocco introduced investor obligations in its 2016 treaty with Nigeria but did not do the same in subsequent agreements – e.g., in the 2020 Morocco–Japan treaty.Footnote 130 Some emerging economies have taken a different position. Brazil has signed an investment treaty with India requiring investors to respect internationally recognized human rights, refrain from asking or accepting regulatory givings that might led to human rights violations and abstain from interfering in domestic politics. These two important capital exporting countries are critical of ISDS.Footnote 131
In current ISDS practice, the relationship between investor rights and obligations remains dominated by the decoupling imaginary. Rights and duties exist at different levels even if this separation shows inevitable cracks. Many ISDS cases involving Latin American countries illustrate these tensions. In Suez v Argentina, the tribunal decided in 2010 that states are rarely in a situation in which the only way to protect human rights is to violate investor rights; for arbitrators, there are always alternative means.Footnote 132 The majority in Eco Oro v Colombia found in 2021 that treaty exceptions ensure that states can take measures to protect the environment – restitution is not required – but these provisions do not waive the payment of compensation.Footnote 133 In a certain way, protecting both investor and human rights is rarely a problem if we assume that states always have to compensate investors.
This decoupling imagination also shapes the scope and strength of investor rights. In recent cases, ISDS tribunals have observed that investors should not be compensated for public measures addressing regulatory or human rights risks that either they should have known about or they exacerbated through their actions. Essentially, investors need to carry out appropriate due diligence and act accordingly to have legitimate expectations. This requirement became central in a number of cases against Spain and other European countries, and was key in the 2021 award in Eco Oro v Colombia. Footnote 134 In this case, however, the majority decided that the investor still enjoyed legitimate expectations despite the lack of due diligence.Footnote 135 No reason was provided for this outcome, as the dissenter observed.Footnote 136 Similarly, the awards in Copper Mesa v Ecuador, Bear Creek v Perú and SAS v Bolivia –rendered in 2016, 2017 and 2018, respectively – show that investor misconduct or lack of due diligence does not make a significant difference for some arbitrators.Footnote 137 These three awards illustrate how difficult it is for ISDS tribunals to square investor lack of due diligence or misconduct with states’ obligation to pay compensation.
Gradually, some arbitrators have recognized that investors have certain obligations under international law.Footnote 138 The 2016 Urbaser v Argentina award was the first decision to do so, although these arbitrators defined this obligation in a broad and general way. It remains to be seen how the obligation ‘not to engage in activity aimed at destroying [human] rights’ can play out in specific cases.Footnote 139 The dissenting opinion in Bear Creek v Peru (2017) remains probably the only case in which an arbitrator required a foreign investor to comply with a specific international human rights obligation (to obtain free, previous and informed consent [FPIC] under ILO Convention 169).Footnote 140 The majority disagreed, however, noting that international law does not include any investor obligation.Footnote 141 Lastly, the tribunal in David Aven v Costa Rica (2018) accepted that investor obligations may emerge from erga omnes international norms or domestic laws; however, the arbitrators did not discuss the question further because Costa Rica only made general references to environmental damage.Footnote 142
None of these setbacks has stopped states or local communities from continuing to argue that investors deserve no compensation if they failed to carry out appropriate due diligence or were involved in human rights violations.Footnote 143 Arguably, then, we could see some changes in ISDS practice soon, although it is worth noting that some of these cases – Bear Creek v Peru and Eco Oro v Colombia – were based on ‘modern’ investment treaties. At the same time, we should not forget that investors have and continue to use ISDS to block domestic proceedings in which they have been ordered to compensate the local communities for human rights violations.Footnote 144 ISDS can also be a shield.
VI. Conclusions
In this article, I have proposed to see the history of the international law on foreign investment as about the promotion of international investor rights (and ISDS) as much as the resistance to international investor obligations. Business associations and MNCs have promoted a world-making project with strong investor rights and no obligations or just voluntary guidelines; even today, this politics of decoupling remains central to the legal imagination that dominates this field. Some special or different treatment of foreign investment might perhaps be justified by sound policy reasons, but the strong separation of investor rights and obligations into two distinct fields that rarely communicate with each other remains puzzling. This separation contributes to the reproduction of conditions that routinely puts capital over people. As Karl Polanyi noted, property rules ultimately protect owners against people, not governments.Footnote 145
The analysis suggests that the inexistence of international investor obligations is central to the evolution of the international law on foreign investment. Irrespective of the sector, MNCs have openly and explicitly rejected international obligations, arguing instead for voluntary standards. A globalization without international corporate obligations is a globalization in which states do not cooperate to regulate business internationally, while MNCs remain outsiders, blinded to the consequences of their transnational actions.
Post-World War II, business association successfully resisted investor obligations towards states, trade unions and, more recently, towards people and communities. It never mattered whether these obligations were vague or specific. Firms in the natural and extractive sector promoted investment treaties despite their vague standards because they expected that ISDS would serve to develop a ‘case law’ appropriate to the needs of investors. It is not a surprise, then, that business actors have resisted investor obligations as much as, if not more, a global mechanism to monitor or review corporate conduct. Even vague standards can be turned into onerous obligations through interpretation, especially if the case grabs the international public opinion. The situation is different when it comes to voluntary guidelines or internal codes that firms enforce privately. The latter will never be interpreted by unwanted adjudicators. Due to international pressure, MNCs and business associations seem to be ready to accept international arbitration as a means to enforce corporate obligations or standards of conduct. The question is whether the victims of human rights violations can trust a dispute settlement mechanism that even states as powerful as the United States or Germany have significant doubts about.
The debate about international investor rights and obligations continues to be a central political and policy question. Some of the strategies to revise their separation include a demand for consistency of investment and human rights treaties, investors’ obligation to carry out due diligence, or the recognition that investors have some broad human rights obligations or are responsible for certain duties such as FPIC. These all hold some promise as states and other actors insist on these arguments in different fora, including ISDS or other arbitral tribunals. The problem is that these corporate obligations or standards of conduct continue to be embedded into a legal imagination shaped by the politics of decoupling. Irrespective of their strengths and flaws, the ITO Charter, the CERDS and the UN Code of Conduct represented an attempt to bring investor rights and obligations within the same field of international law. Discussing the conditions of possibility for such reconfiguration of the international law on foreign investment exceeds this article. However, as a starting point, academics could contribute to this goal by bringing investment treaty law much closer to business and human rights. The recent report Human rights-compatible international investment agreements constitutes an important step in this direction.Footnote 146
Acknowledgements
I am thankful to Daniel Uribe, Danish, Carlos López and David Schneiderman for comments and suggestions. As always, all errors remain mine only.
Conflicts of interest
The author declares none.
