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Social movements, reframing investment relations, and enhancing the application of human rights norms in international investment law

Published online by Cambridge University Press:  02 December 2020

Moshe Hirsch
Moshe Hirsch*
Affiliation:
The Hebrew University, Mt. Scopus, Jerusalem9190501, Israel, Email: moshe.hirsch@huji.ac.il
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Abstract

The recent moderate trend to increasingly apply human rights law in investment awards is accompanied by certain new investment treaties which include expressed human rights provisions. An analysis of recent investment awards indicates that though there are some ‘winds of change’ in this field, it is equally noticeable that human rights law is far from being mainstreamed in international investment law. Investment arbitration procedural law is also undergoing a process of change, and the new procedural rules tend to enhance public elements in the investment arbitral system. This study is aimed at explaining these recent legal changes, highlighting the role of social movements in reframing investment relations as well as increasing public pressure to apply human rights law. These framing changes concern broadening the frame of investment arbitration (beyond the foreign investor–host state dyad), reversing the perceived balance of power between investors and host states, and zooming-in on local individuals and communities residing in host states. The discussion on factors impeding legal change in this field emphasizes the role of the private legal culture prevalent in the investment arbitration system, which is reflected and reinforced by certain resilient socio-legal frames. Informed by this analysis, the study suggests some legal mechanisms which can mitigate the inter-partes frame, and increase the application of human rights law in investment arbitration; inter alia, rigorous transparency rules that are likely to facilitate increased public pressure on tribunals and increase the participation of social movements representing local actors in arbitral processes.

Keywords

framing analysishuman rightsinvestment arbitrationsocial movementssociology of law
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 34 , Issue 1 , March 2021 , pp. 127 - 154
Copyright
© The Author(s), 2020. Published by Cambridge University Press

1. Introduction

The recent moderate trend to increasingly apply human rights law in investment awards is accompanied by certain new investment treaties which include human rights provisions. An analysis of recent investment awards indicates that though there are some ‘winds of change’ in this field, it is equally noticeable that human rights law is far from being mainstreamed in international investment law. Investment arbitration procedural law is also undergoing a process of change, and the new procedural rules tend to enhance public elements in the investment arbitral system; prominently rules promoting transparency and the EU Investment Court initiative. This study is aimed at explaining these recent legal changes, highlighting the role of social movements in reframing investment relations as well as increasing public pressure to apply human rights law. The discussion on factors impeding the extensive application of human rights emphasizes the role of the private legal culture prevalent in the investment arbitration system, which is reflected and reinforced by certain resilient socio-legal frames. Informed by this analysis, the study suggests some legal mechanisms which can mitigate the inter-partes frame, and increase the application of human rights law in investment arbitration.

Section 2 reviews recent changes concerning the moderate increase of human rights law in investment arbitration jurisprudence and investment instruments (including treaties and model investment treaties), as well as certain changes in investment arbitral rules pertinent to disputes involving human rights issues. Section 3 sheds light on some sociological factors explaining recent trends in this sphere, highlighting the role of social movements and social control mechanisms in the ongoing socio-legal changes. As for social movements, the above trend is primarily explained by framing strategies employed by civil society groups. These framing changes concern broadening the frame of investment arbitration (beyond the foreign investor–host state dyad), reversing the perceived balance of power between investors and host states, and zooming-in on local individuals and communities residing in host states. Section 4 examines factors explaining the limited socio-legal change in investment jurisprudence, addressing impediments relating to the public nature of social movements’ activities and the deeply ingrained inter-partes frame in the investment arbitration community. Section 5 suggests certain legal strategies aimed at enhancing the application of human rights law in investment jurisprudence, including broader transparency rules which are likely to facilitate increased public pressure on tribunals and increase the participation of social movements representing local actors in arbitral processes, that is expected to mitigate the inter-partes frame. Section 6 concludes.

2. Recent changes in international investment law

An analysis of investment tribunals’ jurisprudence law up to 2010 revealed that investment tribunals were generally reluctant to grant significant weight to human rights law in the resolution of investment disputes.Footnote 1 A string of investment awards rendered since 2010 (prominently, Urbaser v. Argentina (2016)),Footnote 2 has shown a more receptive approach towards the application of international human rights law.Footnote 3 This trend is complemented by some new investment treaties and Model Bilateral Investment Treaties (BITs) that include provisions regarding human rights. As for investment arbitral procedure, new rules modifying the dispute settlement system are included in new investment treaties and instruments adopted by transnational institutions and arbitral institutions, notably the EU Investment Court System initiative. As elaborated below, the formation of the latter EU initiative is vitally linked to social movements’ operations, and the realization of this initiative is expected to generate some further change regarding the application of human rights law.

2.1 The application of human rights law in international investment law investment jurisprudence

A survey of investment awards rendered from 2010 through 2018Footnote 4 reveals that out of 355 decisions rendered during this period, 123 explicitly mentioned ‘human rights’. An examination of those 123 awards reveals that 37 of them include only incidental or marginal references to international human rights law issues.Footnote 5 Consequently, 86 investment awards (of the 123 mentioning ‘human rights’) address human rights issues in a non-incidental or non-marginal manner. Those 86 decisions have been analysed in accordance with the tribunals’ attitudes regarding the application or non-application of international human rights law in investment law. The analysis resulted in a division of the 86 awards into three primary groups: Group one is comprised of 28 (out of 86) decisions reflecting predominantly positive attitudes towards the incorporation of human rights law. Group two consists of nine awards reflecting predominantly negative attitudes towards the application of human rights. Group three contains 49 decisions that do not express a distinct attitude regarding the incorporation of human rights law.Footnote 6

As noted, Group one includes 28 decisionsFootnote 7 (out of 86 decisions) reflecting predominantly positive attitudes towards the incorporation of human rights law; representing the legal change in this sphere. This group is comprised of decisions containing general statements supporting the application of human rights law;Footnote 8 decisions including some legal statements supported by case law from human rights tribunals or human rights instruments;Footnote 9 and decisions containing some statements indicating support for the application of human rights law, but also pointing to some differences between these two branches of international law.Footnote 10

Group two includes nine decisionsFootnote 11 (out of 86 decisions) representing resistance to the trend towards increasing the application of human rights. This group is comprised of decisions expressing opposition to the application of human rights. Some of them emphasize the differences between the two branches of international law;Footnote 12 and some contain statements indicating a general non-receptive approach regarding the application of human rights, but also some statements regarding the restricted application of certain human rights rules in investment disputes.Footnote 13

Group three includes 49 decisionsFootnote 14 (out of 86 decisions) that do not express a distinct attitude regarding the application or non-application of human rights. Most tribunals in this group do not essentially address the parties’ arguments regarding human rights. Many of the decisions here do not explain the reasons for not substantially addressing the parties’ human rights arguments:Footnote 15 some awards suggest that the factual findings obviate the need to address human rights arguments;Footnote 16 and some Annulment Committees’ Reports mentioning that the original tribunal has already addressed the human rights issue.Footnote 17

This brief survey indicates a moderate increase in the application of international human rights law in investment tribunals’ jurisprudence. A comparison of investment awards rendered before and since 2010 reveals that investment tribunals in the recent period have been more willing to incorporate human rights. The investment awards adopted during the earlier period showed that a receptive approach towards the application of human rights were clearly fewer (e.g., Mondev v. US (2002))Footnote 18 and more limited in their scope (e.g., Phoenix v. The Czech Republic (2009) relating to a violation of the most fundamental rules protecting human rights).Footnote 19 In addition, investment awards rendered up to 2010 did not include clear and broad statements supporting the incorporation of human rights law like those found in some investment awards rendered since 2010 (such as Urbaser (2016))Footnote 20 and the Tulip Annulment (2015)).Footnote 21 A similar trend also arises from findings of recent empirical studies of investment awards in this sphere.Footnote 22

Thus, we may conclude that although there are some ‘winds of change’ regarding the increasing trend to apply human rights in investment jurisprudence, it is also noticeable that the approach supporting the application of human rights is not the dominant one among investment tribunals. The ‘indistinct majority’ of awards mentioning ‘human rights’ (49/86 decisions) and the majority of investment decisions not mentioning ‘human rights’ (232/355) suggest that human rights law has not been mainstreamed in international investment law.

2.1.1 International instruments

While the bulk of investment treaties do not include provisions regarding human rights,Footnote 23 recent investment treaties and Model BITs signify a gradual inclusion of provisions referring to or mentioning ‘human rights’.Footnote 24 This recent tendency is manifested, for example, in the EU-Canada Comprehensive and Economic Trade Agreement (CETA) 2016;Footnote 25 Norway’s Model BIT 2015;Footnote 26 Nigeria-Morocco Agreement 2016 (not yet in force);Footnote 27 SADC Model BIT 2016;Footnote 28 India’s Model BIT 2016;Footnote 29 Ecuador’s Model BIT 2018;Footnote 30 and the Netherlands’ Model Investment Agreement 2019.Footnote 31 On the multilateral level, the ‘Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises’ was published in 2018.Footnote 32

2.1.2 Soft law instruments

Some new non-legally binding instruments applying to ‘business and human rights’ include human rights duties attributed to multinational investors; notably, the UN Guiding Principles on Business and Human Rights 2011;Footnote 33 Council of Europe’s Committee of Ministers Recommendation on Human Rights on Business 2016;Footnote 34 and the 2011 edition of the OECD Guidelines for Multinational Enterprises.Footnote 35

2.2 Settlement of disputes procedure

Rules applying to the resolution of investment disputes are occasionally significant for the application of human rights law by investment tribunals.Footnote 36 These rules are in a process of change. Many new investment treaties concluded in recent years have adopted diverse changes in investment arbitration procedure.Footnote 37 The EU and international arbitral institutions (such as the International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL)) have adopted various instruments enhancing public elements in the procedural rules governing the settlement of investment disputes. For example, concerning enhanced transparency: ICSID amended its Arbitration rules in 2006 and is currently engaged in a further process of revision,Footnote 38 UNCITRAL adopted in 2014 new rules on transparency (which came into effect in 2014),Footnote 39 and in the same year the UN adopted the ‘Mauritius Convention on Transparency’ under which parties to investment treaties concluded before 1 April 2014 express their consent to apply the above UNCITRAL rules on transparency.Footnote 40 Ongoing negotiations in the UNCITRAL Working Group III (Investor-State Dispute Settlement Reform) also address transparency issues.Footnote 41

The boldest initiative to change the current investment arbitration system is included in the EU ‘Investment Court System’. The EU Council authorized the European Commission in June 2013 to negotiate the Transatlantic Trade and Investment Partnership Agreement (TTIP). The negotiating directives stated that the TTIP should include investment protection and an investor-state dispute settlement system (ISDS), provided that the final outcome meets EU interests.Footnote 42 The TTIP was initially welcomed by a large majority of European national parliaments and the media alike.Footnote 43 The opposition of European civil society groups (discussed below) and declining public support for the TTIPFootnote 44 led the EU Commission, in a rare move, to interrupt the TTIP negotiations in order to conduct a public consultation in 2014, focusing on the investment part of the TTIP.

Following the results of that consultation,Footnote 45 in September 2015 the EU Commission published a revised ISDS proposal suggesting extensive curtailments as to how, when, and where investors could challenge government decisions, as well as a permanent Investor Court System (ICS). According to the new EU initiative, the ICS would be comprised of an investment tribunal and appellate tribunal; all judges would have to hold qualifications comparable to judges in other international courts; judges would be assigned to each dispute on a random basis to guarantee their independence; judges would be barred from working as legal counsel on any other investment dispute while acting as judges; and the dispute settlement proceedings would be transparent.Footnote 46 As for the substantive rules to be applied by the proposed tribunals, the EU proposal states that the investment provisions included in the future TTIP should not affect the parties’ right to regulate through measures necessary to achieve legitimate public policy objects, including the protection of public health, environment, safety, and morals, as well as cultural diversity.Footnote 47 The procedural rules included in the more recent Multilateral Investment Court initiative are substantially similar to the above Investor Court System proposal.Footnote 48

Though the EU’s multilateral court initiative does not expressly aim to apply human rights in investment disputes,Footnote 49 the requirement that judges in the prospective tribunals be barred from working as legal counsels in any other investment dispute (while acting as judge) is expected to generate a change in the composition of current investment tribunals (which often include investment lawyers who sequentially or simultaneously work in commercial law firms and serve as arbitrators).Footnote 50 Under the new rules, the ratio of adjudicators who have been socialized into the private legal culture is expected to be reduced. As discussed in Section 4below, the private law background of many investment arbitrators tends to influence their approach regarding the application of human rights law.

3. Framing, social control and changes in international investment law

Mutual interactions between international law and societies,Footnote 51 and interrelationships between legal and social change,Footnote 52 point out that significant international legal changes are intertwined with socio-cultural changes. Social change has been at the heart of sociology since its inception, and the general assumption is that changes are integral to social life. Some social changes result from planned activities, while others are unintended, with changes most often being the outcome of a combination of both deliberate and unplanned activities.Footnote 53 Causes of social change include social structural strains, ideational changes, technological innovations, demographic changes, and the diffusion of ideas.Footnote 54 Although sociological literature discusses numerous causes of social change, this study addresses two interrelated factors that may explain the above changes in international investment law:Footnote 55 the role of social movements in modifying frames of investment relations and social control processes. Some factors impeding socio-legal change in this sphere are discussed in Section 4 below.

3.1 Social movements and social framing

Sociological literature on social change underscores the role of social movementsFootnote 56 in social change,Footnote 57 and some of the notable ones are linked with well-known legislative changes;Footnote 58 e.g., the Civil Rights Movement, Gay and Lesbian Movements, and the Women’s Movement.Footnote 59 Until the late 1980s, the bulk of social movement scholarship focused on material-organizational resources or political institutional patterns that enabled or constrained these groups. However, like the broader ‘cultural turn’ in social sciences, social movements scholars have become increasingly aware of the interpretative and meaning-construction elements involved in social movements’ activities. This stream in social movement literature emphasizes that social mobilization requires assigning a particular meaning to social phenomena and that actors share grievances – prominently through framing reality.Footnote 60

3.1.1 Social movements framing

The framing perspective in social movement literature emphasizes the significant interconnections between changes in people’s subjective views of reality and social change. When interacting, people seek to maintain a common frame, but frames are vulnerable to change (or manipulation).Footnote 61 The sociological concept of ‘frame’ builds on insights drawn from Erwin Goffman’s seminal scholarship on frame analysis. According to Goffman, frames refer to ‘frameworks or schemata of interpretation’ that ‘allow its user to locate, perceive, identify, and label … occurrences’,Footnote 62 thus ‘rendering what would otherwise be a meaningless aspect of the scene into something that is meaningful’.Footnote 63 These frames also organize social experience and guide action.Footnote 64 Goffman observed that socially accepted frames form central elements of groups’ culture, and are often institutionalized in various ways (though subject to change at different periods).Footnote 65 Social frames entail some events being kept ‘out of frame’, thus kept out of focus and disattended.Footnote 66 Such frames frequently emerge from inter-subjective interactions between individuals in social groups, and they change over time, occasionally due to the activities of social movements.Footnote 67

Snow, Benford and additional scholars developed the concept of ‘framing’ in social movement literature. This scholarship views social movements as ‘signifying agents’ engaged in meaning construction.Footnote 68 Social movements’ frames perform three core functions: focusing attention by bracketing some items in our sensory field (delineating what is in-frame/out-frame); articulation function, in the sense of tying together various punctuated elements of the scene so that one coherent set of meanings is conveyed; and transformative function, by reconstituting the way in which some objects of attention are understood as relating to each other or to the actor.Footnote 69 As to the practical outcome of these frames, Snow, Vligenthart and Ketelaras explain:

Given the focusing, articulation, and transformative functions of frames, it is arguable that how we see, what we make of, and how we act toward the various objects of orientation that populate our daily lives depend, in no small part, on how they are framed.Footnote 70

These scholars highlight the collective action aspects of frames; signifying a collective interpretation of reality in a way that is intended to mobilize potential adherents and constituents, as well as to garner bystander support (so that people move ‘from the balcony to the barricades’).Footnote 71 Collective action frames that inspire people to participate in social movements’ activities are clearly ‘agentic’ and contentious in the sense of calling to action and challenging mainstream frames of reality.Footnote 72 From this perspective, social movements’ success or failure depends to a significant extent on their capacity to revise what is considered as just and unjust; to redefine some existing problem or condition as an ‘injustice’ that demands correction (rather than as a ‘misfortune’ which warrants only charitable consideration).Footnote 73

3.1.2 Social movements in international investment law

Among the many social movements active in the sphere of international investment law, we focus here primarily on two prominent civil society groups: The Corporate Europe Observatory (CEO)Footnote 74 and the Transnational Institute (TNI),Footnote 75 and to a lesser degree on the broader alliance of organizations ‘Stop TTIP’Footnote 76 that also exerts criticism against current forms of investment arbitration. Some other groups, prominently the European Federation for Investment Law and Arbitration (EFILA), oppose and vigorously criticize anti-ISDS groups, and aim to promote a more favourable investment climate in Europe.Footnote 77 In addition to their attempts to change the international legal regime applicable to foreign investments, the NGOs cited here pursue broader objectives, notably food safety, environmental and human rights protection (including labour rights). Due to this linkage, the public debate in many European and North American countries regarding the TTIP and CETA negotiations was frequently entwined with the debate on reforms in ISDS. As Eliasson and Huet explain in their article on the anti-TTIP civil society campaign: ‘ISDS was quickly deemed a useful target which could be drastically simplified to the general public in order to garner attention and raise awareness of TTIP.’Footnote 78 This linkage was manifest not only in the publications of these NGOsFootnote 79 but also in the mass media coverage.Footnote 80

The activities undertaken by those civil society groups included a broad variety of means, including publications and messages transmitted primarily through the internet and social media,Footnote 81 as well as some traditional means such as press releases to the mass media,Footnote 82 street protests and rallies,Footnote 83 and petitions sent to public officials.Footnote 84 Opposition to the TTIP (and significantly to its expected provisions regarding ISDS) was especially pronounced in Europe, prominently in Germany,Footnote 85 and over time, criticism spilt over to other European countries, including Belgium, Austria, the Netherlands, the UK, and Spain.Footnote 86 In 2014–2016, thousands of events were held across Europe by groups both supporting and opposing the TTIP, but over 75 per cent of them were organized by its opponents.Footnote 87 Duran and Eliasson observe that opposition to the TTIP was led by civil society groups that altered public opinion about it.Footnote 88

The significant change in the EU’s position during the TTIP negotiations concerning investment arbitration and the resulting new Investment Court initiative demonstrates the significant impact of social movements on public opinion and public bodies in this field.Footnote 89 The TTIP was initially welcomed by a large majority of European national parliaments and the media alike.Footnote 90 Soon after the official launch of the negotiations, however, civil society groups started raising concerns over the future treatyFootnote 91 and the opposition of European groups to the TTIP – and especially to ISDS – dominated the public debate (and correlated with declining public support for the TTIP in Europe).Footnote 92

The intense resistance to ISDS by civil society groups and the European ParliamentFootnote 93 led the EU Commission to interrupt the TTIP negotiations and conduct a public consultation, focusing on the investment part of the TTIP. The EU public consultation was launched on 27 March 2014: it outlined a possible EU approach and sought feedback on the proposed EU approach.Footnote 94 The consultation concerned both substantive investment protection issues and ISDS questions. The Commission received a total of nearly 150,000 replies, and the vast majority (about 97%), were submitted collectively through various NGOs.Footnote 95 These groups provided pre-prepared answers (made available through online platforms or software), allowing the loading of replies directly into the database of the public consultation (thus making it possible to submit very significant numbers of replies in a short amount of time).Footnote 96 In addition, the EU Commission received replies from over 3,000 individual citizens and some 450 organizations.Footnote 97 Those collective submissions reflect widespread opposition to ISDS in TTIP or in general. As the EU Commission report on these consultation notes, ‘[i]n these submissions, the ISDS mechanism is perceived as a threat to democracy and public finance or to public policies’.Footnote 98 The majority of business associations and large companies supported investment protection and ISDS in TTIP.Footnote 99

Media reports on the results of these consultations frequently referred to public opinion’s strong opposition to ISDS,Footnote 100 and the new EU Trade Commissioner Malmstrom’s key message was that the ‘[t]he consultation clearly shows that there is a huge scepticism against the ISDS instrument’.Footnote 101 In September 2015 the EU Commission published a revised ISDS proposal, including extensive curtailments on how, when, and where investors could challenge government decisions as well as suggesting the establishment of a permanent Investor Court System.Footnote 102

3.1.3 Reframing investment arbitration and investment relations

The civil society groups’ communications raised public awareness to investment arbitration and conveyed to the public a frame drastically different from that prevailing in the investment arbitration community.Footnote 103 Employing the mass media and new social media, these NGOs redefined the existing situation in international investment law as pervaded by injustice and changed public frames by expanding the scope of the investment arbitration frame, reversing the typical balance of power between the main actors within the frame, and zooming-in on the rights of individuals and communities residing in host states.

3.1.3.1 Expanding the scope of the frame

Conventional framing of international investment relations is primarily focused on two main actors: the foreign investor and the host state.Footnote 104 The new frame projected through prominent publications added the ‘investment arbitration industry’ as a significant actor, composed of law firms and arbitrators.Footnote 105 The revised frame highlights the important role played by arbitrators and law firms in investment arbitration.Footnote 106 One of the most prominent NGO publications in this sphere states: ‘The law and the consequential disputes are largely shaped by law firms, arbitrators and, more recently, a phalanx of speculators …’.Footnote 107 These publications focus particularly on elite law firmsFootnote 108 (from which many arbitrators are drawn) that dominate the field of investment arbitration.Footnote 109 As regards lack of transparency, it is argued that the secrecy of the investment arbitration regime protects the market of leading law firms.Footnote 110 In this new frame, investment arbitrators are not perceived as a semi-judiciary genuinely independent of the rival parties; many arbitrators and lawyers are presented as maintaining significant ties with foreign investorsFootnote 111 and sharing business beliefs with them.Footnote 112 According to this vantage point, that group of elite law firms and arbitrators also influences the legal balance between host states and foreign investors (see further below).

3.1.3.2 Reversing the power balance in investment relations

The new frame conveyed by civil society groups reverses the underlying power asymmetry between the main actors within the frame. In the previous conventional frame, the foreign investor was typically perceived as the weaker party vis-à-vis the host sovereign stateFootnote 113 (notably due to the host state’s superior legal position in the domestic legislative process as well as its control of the relevant territory); thus, implicitly deserving enhanced legal protection. The above-cited NGO publications portray transnational foreign investors as powerful actorsFootnote 114 which often confront weak ‘countries with critical economic needs’,Footnote 115 or host states ‘fighting a major economic crisis’.Footnote 116 From this perspective, investors use international legal instruments to sue and ‘scare governments into submission’.Footnote 117

According to this conception, the position of host states is further weakened by investment tribunals which do not ‘act as a fair and neutral intermediary’,Footnote 118 but rather prioritize the rights of investors at the expense of sovereign host states.Footnote 119 As to the interpretation of investment law, investment tribunals are presented as inclining to adopt an expansive ‘claimant-friendly’ interpretation of various treaty clauses.Footnote 120 These publications often use popular symbols of inequality in legal proceedings, such as images of tilted scales.Footnote 121

3.1.3.3 Zooming in on local communities and individuals

Most directly related to the application of human rights law, the frame projected out by the social movements’ publications zooms-in on the effects of foreign investments on local populations and individuals in host states. While the conventional inter-partes model in investment law primarily focused the audience’s attention on the two litigating parties,Footnote 122 the new frame turns the spotlight onto the inhabitants of host states, particularly with regard to vulnerable groups. The revised frame draws attention to the detrimental consequences of investments and legal mechanisms protecting investors’ rights on the reduced protection accorded to human rights, public health, and environmental resources available to largely ‘invisible’Footnote 123 individuals and local groups in host states.Footnote 124 The following statement by a civil society group illustrates this feature of the revised frame: ‘When companies sue governments in international arbitration tribunals, investment arbitrators … can decide to penalise governments for ensuring people’s human rights to health, access to water or electricity as well as the right to a healthy environment.’Footnote 125 These and other publications by anti-ISDS groups have been intensely criticized in some scholarly writingsFootnote 126 and other publications,Footnote 127 which also presented contradicting evidence.Footnote 128

3.1.4 Pathways of influence

The above discussion reveals that the recent changes regarding the increasing application of human rights in international investment law, and particularly reforms in investment arbitral system undertaken by the EU, have been influenced by social movements’ operations. Civil society groups employed a broad variety of means (notably the internet and social media, the mass media, petitions, street protests and petitions)Footnote 129 and their pathways of influence are intertwined (and thus, cannot be neatly separated). Those movements’ activities influenced public opinion against ISDS and the TTIP,Footnote 130 which influenced some EU member states,Footnote 131 and EU states (as well as public opinion) influenced EU institutions to pursue the Investment Court initiative.Footnote 132 In addition to their indirect impact (through public opinion and EU member states), civil society groups influenced the EU Commission to reform the investment arbitral system via the public consultation held in 2014. As previously noted, the vast majority of replies were collectively submitted through NGOs (which provided pre-prepared answers), and the EU Commission’s Investment Court System followed the publication of the results of the public consultations.Footnote 133

The new frame conveyed by the social movements turned public attention to the effects of foreign investments on the rights of individuals and local communities, reversed the conventional asymmetric structure pervasive in the investment law doctrine, and highlighted the role which arbitrators and law firms played in international investment law.Footnote 134 The EU’s Investment Court initiative was prompted by criticism levelled by social movements, but the rules included in the ICS initiative address part of the concerns raised by these civil society groups;Footnote 135 mainly those relating to procedural rules that concern the independence of tribunals, the role of law firms, and reversing the conventional asymmetric structure of investor relations. The new ICS procedural rules notably aim to address concerns regarding the independence of adjudicators and avoiding conflicts of interest, as well as lack of transparency.Footnote 136 As to the expected influence of these procedural changes on the application of human rights by tribunals, the new requirement that judges in the prospective tribunals be barred from working as legal counsels in any other investment dispute (while acting as a judge) is expected to generate a change in the composition of investment tribunals (which often include investment lawyers who work in commercial law firms and serve as arbitrators). As discussed in Section 4 below, the private law background of many investment arbitrators tends to influence their approach regarding the application of human rights law. As to substantive rules, the new ICS provisions concerning the right to regulate are related to the above frame change which reverses the conventional asymmetric structure in favour of foreign investors; the new rules support the right of host states to adopt measures designed to achieve legitimate public objectives, which include better protection of human rights of local individuals and communities residing in the host states.

The moderate influence of social movements’ operations on investment tribunal jurisprudence (see Section 2 above) and limited internalization of the new frame in investment awards (discussed further below) highlight the limits of social movements’ framing activities.Footnote 137 In addition to changing frames of investment relations, civil society groups took part in social control processes which also explain the above legal changes.

3.2 Social control mechanisms

The second sociological factor shedding light on the increasing application (though tempered) of human rights in investment law concerns international social control mechanisms. Every social group deploys some means to encourage and enforce conformity with social norms, involving a multitude of formal and informal means (such as expressions of social disapproval, contempt, or threats of isolation).Footnote 138 Although such mechanisms often tend to preserve existing social patterns, they may also pressure people to adopt new types of behaviour. In this context, social pressure operates to promote conformity with norms associated with the above-mentioned new frame and associated criticism against the current situation in international investment law.

The previously discussed social movements criticize investment tribunals for prioritizing the protection of corporations’ property rights over humans and environmental protection in host states,Footnote 139 and for adopting a restrictive approach regarding the application of human rights law.Footnote 140 Civil society groupsFootnote 141 and additional actors pressure states, public bodies, and arbitrators to incorporate human rights norms into international investment law. Pressure to apply human rights law has also been exerted by significant international institutions; including UN human rights bodies (like the Committee on Economic, Social and Cultural Rights,Footnote 142 the Human Rights Council,Footnote 143 and the Independent Expert on the Promotion of a Democratic and Equitable International OrderFootnote 144), independent human rights experts,Footnote 145 as well as some academic scholars.Footnote 146 The combined effect of those critical publications and statements supporting the incorporation of human rights law constitutes an international social control process pressuring policy-makers and investment arbitratorsFootnote 147 to increase the application of human rights in investment law.

4. The limits of social movements’ framing and impediments to socio-legal change

4.1 The limits of social movements’ framing

The recent legal changes regarding reforms in investment arbitral system (conspicuously the EU initiative), as well as the increasing application of human rights law in some new international treaties and Model BITs, have been significantly influenced by the social movements’ activities described above. It is impossible to accurately measure the impact of the above-cited social movements’ framing operations and social control processes, but as discussed above,Footnote 148 there are some significant indications that they contributed substantially to the legal changes in international investment law. Lavranos (one of the main critics of anti-ISDS groups and Secretary-General of EFILA)Footnote 149 observed in October 2016:

[i]n the past two to three years the critics of investor-to-state dispute settlement (ISDS) have been tremendously successful in setting up an [sic] effective propaganda, which has managed to scare and misinform the general public, media, and politicians.

This propaganda has not only turned around once pro-ISDS countries like Germany, The Netherlands and France, but has also brought the TTIP negotiations regarding ISDS to a halt.

But above all, the anti-ISDS groups have managed to convince the European Commission to turn its back on the 50 years long tested ISDS system and develop a proposal for a kind of hybrid semi-permanent court like body. This investment court system (ICS) proposal has even made it into CETA and the EU-Vietnam FTA and has been proposed to the US for inclusion in TTIP.Footnote 150

The above framing and social control processes took place primarily in the public realm and significantly influenced public institutions, the EU, international institutions, and states. The resulting legal change has been notable with regard to the EU Investment Court initiative, reforms undertaken by international arbitral institutions, and new investment treaties referring to human rights. An analysis of investment arbitration awards indicates, however, that social movements’ framing and social control operations have only moderately influenced investment arbitrators. While human rights of foreign investors and the litigating parties’ procedural rights belong to international human rights law, the fundamental conception of human rights protection concerns human rights of weaker individuals and local groups.Footnote 151 Consequently, we also examined whether investment awards delivered between 2010 and 2018 that expressed predominantly positive attitudes towards the incorporation of human rightsFootnote 152 deviate from the traditional inter-partes frame, and pay attention to the rights and positions of individuals and local groups residing in host states. This analysis revealed that only 35.7 per cent of the decisions (10/ 28 decisions) included in this relatively favourable group reflect the ‘third party’ frame and paid attention to the rights or interests of local individuals and communities.Footnote 153

Thus, social movements’ new frame, zooming-in on local communities and individuals, does affect public opinion and public bodies but has not meaningfully cascaded from the public sphere to the investment arbitration community. Most investment awards generally supporting the application of human rights law do not pay significant attention to the effects of foreign investors on local individuals and communities. As discussed in Section 2.1 above, while there is some increase in the application of human rights in investment awards, it is clear that human rights law is far from being mainstreamed in investment jurisprudence. The following section briefly discusses some socio-legal features of the investment arbitration community impeding meaningful incorporation of human rights law into investment jurisprudence.

4.2 Resilient frames and impediments to socio-legal change

The previous discussion indicates that social movements’ framing operations and social control processes have influenced public frames of investment arbitration which, in turn, have applied pressure on public bodies (EU members, EU institutions, and international institutions) to reform investment law. An examination of the limited influence of these social factors on investment jurisprudence requires us to explore some features of the arbitrators’ professional community and its legal culture. While the investment arbitration community has been well aware of the new public frame and mounting criticism against investment arbitration, this social group is less permeable to public pressure,Footnote 154 and the changing frame of investment relations has been slowly penetrating this professional group.Footnote 155

The opposition of some investment tribunals to an extensive application of human rights law in investment awards,Footnote 156 and the limited internalization of the frame highlighting the rights of local individuals and communitiesFootnote 157 can be explained by the private legal culture prevailing in the investment arbitration communityFootnote 158 and resilient cognitive frames that reflect and reinforce this culture. One of the cornerstones of this private legal culture is the inter-partes modelFootnote 159 which forms not only a legal model but also an influential cognitive frame – or schema – in this social group. The constraining effect of frames on individuals is emphasized by the more recent cognitive sociological (and social cognition) literature, that uses the similar concept of ‘schema’. The terms ‘frame’ (developed in social movements scholarship) and ‘schema’ (mainly developed in social cognition and cognitive sociological literature) are not identical, although both refer to cognitive frameworks affecting perception, interpretation, and organization of information.Footnote 160 As noted above, early sociological literature on frame analysis presented frames as ‘frameworks or schemata of interpretation’.Footnote 161

Schemata are both representations of existing knowledge and information-processing mechanisms,Footnote 162 thus constituting cognitive lenses through which people perceive and interpret their social environment. Schemata allow people to ‘fill in the blanks’ and make sense of new experiences. Schemata and culture are closely interrelated,Footnote 163 and culturally infused schemata affect our perception, interpretation and memory.Footnote 164 Recent cognitive sociological scholarship highlights that socio-cognitive patterns (including schemata) vary not only across distinct cultures but also across sub-cultures and professional groups.Footnote 165

While the above social movements literature emphasizes the agentic nature of frames as amenable to change by social movements, the more recent cognitive sociological literature underlines the constraining nature of schemata, transmitted and enforced by social processes like socialization and social control mechanisms.Footnote 166 The recent cognitive-sociological literature emphasizing the constraining effect of frames on individuals sheds light on the impediments to meaningful application of human rights in investment jurisprudence. Numerous issues arising in investment disputes involve human rights aspects; for example, arguments concerning expropriation under investment law involve the human right to property, and arguments regarding ‘fair and equitable treatment’ under investment law involve investors’ procedural human rights (e.g., regarding ‘due process’).Footnote 167

The overlooking of human rights issues in most investment awardsFootnote 168 may be explained by the constraining effect of the inter-partes frame dominating the investment legal culture. Many members of the investment arbitration community work in commercial law firms and have been socialized into the private legal culture and its accompanying socio-cognitive characteristics, and these arbitrators and lawyers are constrained by deeply ingrained frames prevalent in this community. From this perspective, the private legal culture and its central inter-partes model also constitute a mental lens tending to focus the attention of many investment arbitrators and lawyers on the rights of the two litigating parties, relegating to the background the needs and rights of local communities and individuals. On the other hand, private law aspects of investment relations (such as contractual and semi-contractual arrangements) fit well into this frame and are more likely to capture the attention of arbitrators and be stored in their memory.

The strained relations between the investment arbitration community and the human rights communityFootnote 169 further diminish the receptiveness of many arbitrators to the new frame conveyed by social movements. These relations were aggravated by the civil society groups’ blistering criticism of investment arbitrators. Thus, for example, while the fundamental values of the investment arbitration community include fairness, even-handedness, and impartiality,Footnote 170 the above NGOs present investment tribunals as failing to act fairly and impartially.Footnote 171 This social movements frame alienates many members of the investment arbitration community from human rights groups.

In sum, while social movements performed well in the important public domain, some deeply ingrained features of the investment arbitration culture (particularly the inter-partes frame) and strained relations between the groups impede the capacity of social movements to reach across to the investment arbitration community and generate therein meaningful socio-legal change regarding the importance of human rights of local actors.

5. Making local actors visible in investment arbitration: Legal strategies supporting socio-legal change

The preceding discussion indicates that while human rights issues are frequently involved in investment disputes, deeply rooted frames prevalent in the investment arbitration culture lead many investment arbitrators and lawyers to overlook or undervalue the human rights of local individuals or communities. Such frames, and particularly the inter-partes model, may explain why the private legal culture is relatively stable and resilient to a rapid change regarding the application of human rights law. It would be naïve to assume that the mere establishment of new human rights provisions in new investment treaties would be sufficient to engender a dramatic socio-cultural change regarding mainstreaming human rights of local actors in investment jurisprudence. Thus, for example, given the existing private-legal culture and its accompanying socio-cognitive patterns, the mere insertion of general human rights provisions into investment treaties may lead many arbitrators to rigorously protect the human rights of foreign investors (e.g., in the framework of ‘fair and equitable treatment’ clauses); while granting less protection to the rights of individuals and local communities harmed by foreign investments.

Mutual interactions between culture and cognitive patterns suggest, however, that the inter-partes frame and additional private law cultural features are not immune to change. Some legal mechanisms may promote awareness by members of the investment arbitration community towards new frames transmitted by social movements and public opinion. Such desirable legal strategies could take the form of new rules included in investment treaties, arbitral institutions’ procedural rules, or appropriate interpretation of already existing legal rules applying to arbitral proceedings. Generally, increasing the influence of public pressure on arbitrators regarding the role of human rights is likely to be supported by robust transparency rules; and enhancing the participation of social movements representing local actors in arbitral processes is expected to mitigate the inter-partes frame. It is noteworthy that the legal strategies discussed below are not aimed at addressing civil society groups’ critique against investment arbitrators (discussed above) or granting full rights to social movements in investment disputes (e.g., regarding remedies); the objective is rather making largely invisible local communitiesFootnote 172 visible on arbitrators’ cognitive maps.

5.1 Transparency rules

ConfidentialityFootnote 173 is traditionally considered one of the major principles of international commercial arbitration,Footnote 174 and the default rule is conducting arbitral proceedings in a confidential and private manner.Footnote 175 Transparency rules embracing observation of arbitral hearing and access to submitted documents are significant both for enhancing the permeability of investment tribunals to public opinion’s pressure as well as mitigating the inter-partes frame that tends to diminish the weight of local actors’ rights. The prevailing atmosphere of confidentiality in most investment arbitral proceedingsFootnote 176 tends to intensify adjudicators’ inter-partes frame and highlight their role as settling a specific dispute between the two litigating parties. The presence of local actors’ representatives in the arbitral hearing and enabling them to make submissions regarding the interpretation or application of treaties)Footnote 177 are expected to better position local actors’ rights and needs within arbitrators’ frames.

Existing arbitral rules regarding attendance at hearings and access to documents are extremely diverse. Generally, broader access to third parties is allowed under the 2014 UNCITRAL Rules on TransparencyFootnote 178 and Canada’s economic treaties;Footnote 179 while the existing ICSID Arbitration Rules are generally more restrictive.Footnote 180 The expected contribution of rigorous transparency rules to the application of human rights lawFootnote 181 supports the establishment of a presumption of transparency whenever human rights of non-litigants are involved in investment arbitration. As Peters explains:

[a] presumption of transparency means that the non-release of documents and the closure of meetings to the public must be specifically justified on the basis of legal exceptions which have been clearly defined and circumscribed … the burden of explaining and of proving the need for secrecy is thereby placed on the institution itself – not on those outsiders who request access.Footnote 182

Such a presumption of transparency is valuable for the interpretation of transparency rules that include exceptional clauses designed to restrict transparency in particular circumstances (e.g., regarding confidential business information or information protected under a treaty or domestic law).Footnote 183 To attain the aims of increasing tribunals’ exposure to public opinion and mitigating the inter-partes frame, it is desirable to include broad transparency rules in investment treaties and arbitral institutions’ rules, and to apply the suggested presumption in favour of transparency while interpreting transparency provisions. Even where some restrictions on transparency are justified, they should not necessarily completely block access to arbitral hearings or documents. Some arrangements determined by the tribunal may allow access with some reasonable limits (such as delayed broadcasting of the tribunal hearing, to allow protection of confidential information brought during the hearing).Footnote 184 Transparency in investment arbitration (including access to documents) is also significant for realizing the benefits of amicus curiae submissions.Footnote 185

5.2 Amicus curiae submissions

Enhancing the participation of social movements in investment arbitration proceedings is expected to mitigate the inter-partes frame and enhance the protection of human rights of local individuals and communities. Currently, direct participation of civil society groups in arbitral proceedings is most often undertaken through third-party submissions.Footnote 186 The infancy period of amicus curiae submissions was characterized by the absence of expressed legal regulation; with investment tribunals shaping the early rules in this sphereFootnote 187 through reliance on their discretionary power to interpret vague provisions included in the ICSID ConventionFootnote 188 and the 1976 UNCITRAL Arbitration Rules.Footnote 189 The seminal decision of the Methanex tribunal (2001) to allow written amicus curiae submissionsFootnote 190 was followed by new procedural rules adopted by international arbitral institutions (such as ICSID and UNCITRAL),Footnote 191 new investment treaties,Footnote 192 and model BITsFootnote 193 – explicitly allowing tribunals to accept third party submissions.Footnote 194

Contemporary treaty provisions and jurisprudence provide for diverse rules regarding amicus curiae submissions, and De Brabandere elucidates four common requirements for such non-disputing party submissions:Footnote 195 (i) certain formal requirements (e.g., regarding the language or maximum length of the written submissions); (ii) that the submission address a matter within the scope of the dispute; (iii) that the submissions represent an interest different from that of the parties’ interests; and (iv) that the non-disputing party have an interest in the dispute.Footnote 196 These common criteria include some vague criteria (such as ‘the scope of the dispute’ or third party ‘interest’) that leave significant room for arbitrators’ discretion, and the interpretation of these requirements often involves some value-laden considerations.

The above deeply rooted inter-partes frame in the investment arbitration culture often results in an inclination by arbitrators to focus their attention on the rights of the two litigating parties and relegating to the background the rights of third parties absent from the arbitral proceedings. The detrimental effect of this inclination on local actors’ human rights protection justifies countering this tendency by setting a legal presumption in favour of amicus curiae. Thus, where significant human rights of local individuals or communities are involved, it is desirable to apply this presumption favouring the acceptance of non-disputing parties’ submissions representing the rights of these ‘absent’ actors in investment relations.Footnote 197 This suggested approach militates against conditioning amicus curiae submission on the consent of the two litigating parties.Footnote 198

It is, thus, advisable that broad provisions regarding amicus curiae submissions would be included in future investment treaties and arbitral institutions’ rules. Such rules, coupled with tribunals’ liberal interpretation of these rules according to the presumption favouring non-disputing parties’ submissions, are expected to enhance social movements’ capacity to directly present information and legal arguments regarding human rights of local individuals; mitigate the inter-partes frame prevalent in the investment arbitration community, and foreground the fundamental rights of these largely absent – but significant – actors in investment arbitral proceedings.

5.3 Institutionalizing the participation of local actors in arbitral proceedings

In the absence of any organization requesting to represent the rights of local individuals and communities, the question arises whether it is desirable for future instruments to institutionalize the authority of investment tribunals to take the initiative and invite some regional or global human rights organization to represent those ‘invisible’ actors. The invited organization may, for example, nominate some expert of its own staff or from another appropriate institution to attend the arbitral hearing and/or submit amicus curiae. Such a development significantly deviates from the classical adversarial nature of international arbitration, and it is doubtful whether current investment tribunals can rely on their discretional powers and spontaneously (proprio motu) invite the representatives of such third parties.Footnote 199 Such a departure from the inter-partes arbitral model, however, may be justified in exceptional cases involving grave violations of human rights of unrepresented local communities or individuals. In such extreme cases where, for example, the local community or individual is unaware of the grave risk to their fundamental human rights (e.g., because of the proceedings’ confidentiality), the tribunal may well be justified in undertaking such a measure.

The discussion on institutionalizing the participation of local actors’ representatives brings to the fore difficult questions regarding the outer limits of third parties’ representation in an arbitral system inherently deriving from the inter-partes model, and regarding concerns over transforming arbitral proceedings into court-like proceedings. Answering these fundamental questions involves a discussion on whether investment disputes implicating grave human rights issues are ‘arbitrable’ (as part of ‘public policy’)Footnote 200 in inter-partes arbitral proceedings (a discussion exceeding the limits of this study). The legal response developed by investment tribunals has sought to reconcile the need to adjudicate investment disputes with the need to consider their effects on the public interest, by enhancing transparency and allowing potentially harmed third parties to participate in proceedings.Footnote 201 The vital need to advance this cause of reconciling investment arbitral procedures and the adjudication of disputes involving grave human rights issues justifies, it is submitted, to take a further step and institutionalize the participation of local actors’ representatives in such serious cases. Generally, regarding the three suggestions discussed here, more severe threats to fundamental human rights should justify granting greater participatory rights to third parties representing local individuals and communities, and the application of more rigorous transparency rules.

6. Concluding Remarks

Recent changes in international investment law concerning the moderately increased application of human rights law and significant reforms to investment arbitration rules were influenced by social movements’ framing activities as well as social pressure exerted by diverse actors. The latter framing and social control processes primarily took place in the public realm, and significantly influenced public opinion and public institutions (such as EU member states, EU institutions, and various UN actors). While social movements’ new frame (zooming-in on local communities and individuals) does affect public opinion and public bodies, it has not meaningfully cascaded from the public sphere to the investment arbitration community. The limited internalization of the new frame highlighting the rights of local individuals and communities is explained by the private legal culture prevailing in the investment arbitration community and certain deeply rooted socio-cognitive patterns reflecting and reinforcing this culture. The private legal culture and the inter-partes frame dominating the investment arbitration legal culture also constitute a mental lens tending to focus the attention of many investment arbitrators and lawyers on the rights of the two litigating parties, relegating to the background the rights and needs of local communities and individuals.

Certain legal reforms in investment arbitral procedures are likely to promote the awareness of investment arbitrators towards the new frame transmitted by social movements, as well as increase the permeability of the investment arbitration community to public opinion supporting an extensive application of human rights law in investment jurisprudence. Informed by the sociological literature described here, this study suggests the establishment of new legal provisions and presumptions in investment treaties, international arbitral institutions’ rules and investment tribunals’ jurisprudence. The suggested rules include robust provisions concerning transparency of investment arbitral proceedings, amicus curiae submissions, and institutionalizing the representation of local actors in such proceedings. It is recommended that investment tribunals (even in the absence of newly enacted rules) exercise their discretion in the procedural field and broadly interpret existing legal provisions relating to these significant issues. Such legal changes, if meaningfully implemented, are expected to mitigate the inter-partes frame prevalent in the investment arbitration culture and make the largely invisible rights of local individuals and communities visible on arbitrators’ cognitive maps.

Annex: List of Cases

  1. 1. Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador, UNCITRAL, Partial Award on the Merits (30 March 2010)

  2. 2. Merrill & Ring Forestry L.P. v. The Government of Canada, ICSID case No. UNCT/07/1, Award (31 March 2010)

  3. 3. Gustav F W Hamester GmbH & Co KG v. Republic of Ghana, ICSID case No. ARB/07/24, Award (18 June 2010)

  4. 4. Marfin Investment Group Holdings S.A., Alexandros Bakatselos and others v. Republic of Cyprus, ICSID Case No. ARB/13/27, Award (26 July 2010)

  5. 5. Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability (30 July 2010)

  6. 6. Enron Creditors Recovery Corp. Ponderosa Assets, L.P v. The Argentine Republic, ICSID Case No. ARB/01/3, Decision on Annulment (30 July 2010)

  7. 7. Piero Foresti and others v. The Republic of South Africa, Case No. ARB(AF)/07/1, Award (4 August 2010)

  8. 8. Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic, ICSID Case No. ARB/97/3, Decision on Annulment (10 August 2010)

  9. 9. RosInvestCo UK LTD. v. The Russian Federation, SCC Arbitration V Case No. 079/2005, Award (12 September 2010)

  10. 10. Eureko B.V. v. The Slovak Republic, PCA case No. 2008-13, Award on Jurisdiction, Arbitrability and Suspension (26 October 2010)

  11. 11. Frontier Petroleum Services LTD. v. Czech Republic, Award (12 November 2010)

  12. 12. Nations Energy Inc., Electric Machinery Enterprises Inc. and Jaime Jurado v. The Republic of Panama, ICSID Case No. ARB/06/19, Award (24 November 2010)

  13. 13. Balkan Energy Limited v. The Republic of Ghana, PCA Case No. 2010-7, Interim Award (22 December 2010)

  14. 14. Fraport Ag Frankfurt Airport Services Worldwide v. Philippines, (ICSID Case No. ARB/03/25), Decision on Annulment (23 December 2010)

  15. 15. Total S.A. v. Argentine Republic, ICSID Case No. ARB/04/1, Decision on Liability (27 December 2010)

  16. 16. Grand River Enterprises Six Nations, LTD., et al. v. United States of America, UNICITRAL, Award (12 January 2011)

  17. 17. Joseph Charles Lemire v. Ukraine, ICSID Case No. ARB/06/18, Award (28 March 2011)

  18. 18. M. Meerapfel Söhne AG v. Central African Republic, ICSID case No. ARB/07/10, Award (12 May 2011)

  19. 19. Impregilo S.p.A. v. Argentine Republic, ICSID Case No. ARB/07/17, Award (21 June 2011)

  20. 20. Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador, UNICITRAL, Final Award (31 August 2011)

  21. 21. Libananco Holdings Co. Limited v. Republic of Turkey, ICSID case No. ARB/06/8, Award (2 September 2011)

  22. 22. Continental Casualty Company v. The Argentine Republic, ICSID Case No. ARB/03/9, Decision on Annulment (16 September 2011)

  23. 23. El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award (31 October 2011)

  24. 24. White Industries Australia Limited v. The Republic of India, UNICITRAL, Award (31 November 2011)

  25. 25. Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/1, Award (7 December 2011)

  26. 26. ICS Inspection and Control Services Limited v. The Argentine Republic, UNCITRAL, PCA Case No. 2010-9, Award on Jurisdiction (10 February 2012)

  27. 27. Jan Oostergetel and Theodora Laurentius v. The Slovak Republic, UNICITRAL, Award (23 April 2012)

  28. 28. EDF International S.A v. Argentine (aka Saur v. Argentina), ICSID Case No. ARB/03/23, Award (11 June 2012)

  29. 29. Swisslion DOO Skopje v. The Former Yugoslav Republic of Macedonia, ICSID case No. ARB/09/16, Award (6 July 2012)

  30. 30. Quasar De Valores Sicav and others v. The Russian Federation, SCC Arbitration, Award (20 July 2012)

  31. 31. Daimler Financial Services AG v. Argentine Republic, ICSID case No. ARB/05/1, Award (22 August 2012)

  32. 32. Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, ICSID Case No. ARB/06/11, Award (5 October 2012)

  33. 33. Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC B.V v. The Republic of Paraguay, ICSID case No. ARB/07/9, Decision on Jurisdiction (9 October 2012)

  34. 34. Bosh International, INC and B&P LTD Foreign Investments Enterprise v. Ukraine, ICSID case No. ARB/08/11, Award (25 October 2012)

  35. 35. Achmea B.v. v. The Slovak Republic, UNCITRAL, PCA Case No. 2008-13, Award (7 December 2012)

  36. 36. Victor Pey Casado and Foundation “Presidente Allende” v. Republic of Chile, ICSID Case No. ARB/98/2/N, Decision on Annulment (18 December 2012)

  37. 37. Urbaser S.A and Consorcio De Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26, Decision on Jurisdiction (19 December 2012)

  38. 38. Teinver S.A v. The Argentine Republic, ICSID Case No. ARB/09/1, Decision on Jurisdiction (21 December 2012)

  39. 39. Ambiente Ufficio S.P.A. and others v. The Argentine Republic, ICSID case No. ARB/08/9, Decision on Jurisdiction and Admissibility (8 February 2013)

  40. 40. Mr. Franck Charles Arif v. Republic of Moldova, ICSID Case No. ARB/11/23, Award (8 April 2013)

  41. 41. Mobil Exploration and Development Argentina Inc. Suc. Argentina And Mobil Argentina Sociedad Anónima v. The Argentine Republic, ICSID Case No. ARB/04/16, Decision on Jurisdiction and Liability (10 April 2013)

  42. 42. Yuri Bogdanov and Yulia Bogdanova v. Republic of Moldova, SCC Arbitration Case No. V(091/2012), Award (16 April 2013)

  43. 43. The Rompetrol Group N.v. v. Romania, ICSID Case No. ARB/06/3, Award (6 May 2013)

  44. 44. Convial Callao S.A. and CCI - Compañía de Concesiones de Infraestructura S.A. v. Republic of Peru, ICSID case No. ARB/10/2, Award (21 May 2013)

  45. 45. Burimi Srl and Eagle Games SH.A v. Republic of Albania, ICSID case No. ARB/11/18, Award (29 May 2013)

  46. 46. Kiliç Ĭnşaat Ĭthalat Ĭhracat Sanayi Ve Ticaret Anonim Şirketi v. Turkmenistan, ICSID case No. ARB/10/1, Award (2 July 2013)

  47. 47. Malicorp Limited v. Arab Republic of Egypt, ICSID Case No. ARB/08/18, Annulment Decision (3 July 2013)

  48. 48. ST-AD GmbH v. The Republic of Bulgaria, PCA Case No. 2011-06, Award on Jurisdiction (18 July 2013)

  49. 49. Conocophillips Petrozuata B.v. and others v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30, Decision on Jurisdiction and the Merits (3 September 2013)

  50. 50. ECE Projekt management International GMBH v. Czech Republic, PCA Case No. 2010-5, Award (19 September 2013)

  51. 51. Metal-Tech LTD. v. The Republic of Uzbekistan, ICSID case No. ARB/10/3, Award (4 October 2013)

  52. 52. KT Asia Investment Group B.v. v. Republic of Kazakhstan, ICSID Case No. ARB/09/8, Award (17 October 2013)

  53. 53. Lee John Beck and Central Asian Development Corporation v. Kyrgyzstan, Moscow Chamber of Commerce and Industry, Award (13 November 2013)

  54. 54. Ioan Micula and others v. Romania, ICSID Case No. ARB/05/20, Award (11 December 2013)

  55. 55. Anatolie Stati and others v. The Republic of Kazakhstan, SCC Arbitration Case No. V(116/2010), Award (19 December 2013)

  56. 56. Emmis International Holding B.v. and others v. Hungary, ICSID Case No. ARB/12/2, Award (16 April 2014)

  57. 57. Enkev Beheer B.V v. The Republic of Poland, PCA Case No. 2013-01, Partial Award (29 April 2014)

  58. 58. Achmea B.V. v. The Slovak Republic, PCA case No. 2013-12, Award on Jurisdiction and Admissibility (20 May 2014)

  59. 59. Yukos Universal Limited (Isle of Man) v. The Russian Federation, UNCITRAL, Final Award (18 July 2014)

    1. a. Hulley Enterprises Limited v. The Russian Federation, UNICITRAL, Award (18 July 2014)

    2. b. Veteran Petroleum Limited (Cyprus) v. The Russian Federation, UNCITRAL, Final Award (18 July 2014)

  60. 60. OAO Tatneft v. Ukraine, UNCITRAL, PCA, Award on the Merits (29 July 2014)

  61. 61. Apotex Holdings INC. and Apotex INC. v. United States of America, ICSID Case No. ARB(AF)/12/1), Award (25 August 2014)

  62. 62. Gold Reserve INC. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1, Award (22 September 2014)

  63. 63. Flughafen Zürich A.G. and Gestión E Ingeniería IDC S.A. v. The Bolivarian Republic of Venezuela, ICSID case No. ARB/10/19, Award (18 November 2014)

  64. 64. Al Warraq v. Indonesia, UNICITRAL, Award (15 December 2014)

  65. 65. Serafín García Armas and Karina García Gruber v. The Bolivarian Republic of Venezuela, CPA No. 2013-3, Decision on Jurisdiction (15 December 2014)

  66. 66. Joseph Houben v. The Republic of Burundi, ICSID case No. ARB/13/7, Award (12 January 2015)

  67. 67. Hassan Awdi and others v. Romania, ICSID Case No. ARB/10/13, Award (2 March 2015)

  68. 68. OI European Group B.V. v. Bolivian Republic of Venezuela, ICSID case No. ARB/11125, Award (10 March 2015)

  69. 69. William Ralph Clayton and others v. Government of Canada, UNICITRAL, Award on Jurisdiction and Liability (17 March 2015)

  70. 70. Mamidoil Jetoil Greek Petroleum Products Societe S.A. v. Republic of Albania, ICSID Case No. ARB/11/24, Award (20 March 2015)

  71. 71. Accession Mezzanine Capital L.P. and Danubius Kereskedőház Vagyonkezelő Zrt. v. Hungary, ICSID case No. ARB/12/3, Award (17 April 2015)

  72. 72. Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v. Kingdom of Belgium, ICSID case No. ARB/12/29, Award (30 April 2015)

  73. 73. Kiliç Inşaat Ithalat İhracat Sanayi Ve Ticaret Anonim Şirketi v. Turkmenistan, ICSID Case No. ARB/10/1, Decision on Annulment (14 July 2015)

  74. 74. Bernhard Friedrich Arnd Rüdiger von Pezold and others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award (28 July 2015)

  75. 75. Prenco Ecuador Limited v. The Republic of Ecuador, ICSID Case No. ARB/08/6, Interim Decision on The Environmental Counterclaim (Aug. 11, 2015)

  76. 76. Quiborax S.A. and Non Metallic Minerals S.A. v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2, Award (16 September 2015)

  77. 77. Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, ICSID Case No. ARB/06/11, Decision on Annulment (2 November 2015)

  78. 78. Adel A Hamadi Al Tamimi v. Sultanate of Oman, ICSID Case No ARB/11/33, Award (2 November 2015)

  79. 79. Electrabel S.A. v. Hungary, ICSID Case No. ARB/07/19, Award (25 November 2015)

  80. 80. Tulip Real Estate and Development v. Republic of Turkey, ICSID Case No. ARB/11/28, Decision on Annulment (30 December 2015)

  81. 81. EDF International S.A and others v. Argentine Republic, ICSID case No. ARB/03/23, Decision [annulment proceedings] (15 January 2016)

  82. 82. İçkale İnşaat Limited Şirketi v. Turkmenistan, ICSID case No. ARB/10/24, Award (8 March 2016)

  83. 83. Copper Mesa Mining Corporation v. The Republic of Ecuador, PCA Case No. 2012-2, Award (15 March 2016)

  84. 84. Crystallex International Corporation v. Bolivian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award (4 April 2016)

  85. 85. Cem Cenzig Uzan v. The Republic of Turkey, SCC Arbitration Case No. V2014/023, Award on Respondent’s Bifurcated Preliminary Objection (20 April 2016)

  86. 86. MNSS B.v. and Recupero Credito Acciaio N.v. v. Montenegro, ICSID Case No. ARB(AF)/12/8, Award (4 May 2016)

  87. 87. RREEF Infrastructure (G.P.) v. Kingdom of Spain, ICSID Case No. ARB/13/30, Decision on Jurisdiction (6 June 2016)

  88. 88. Dunkeld International Investment Limited v. The Government of Belize, PCA case No. 2010-13, Award (28 June 2016)

  89. 89. Isolux Infrastructure Netherlands, B.V. v. Spain, SCC case No. V2013/153, Award (6 July 2016)

  90. 90. Philip Morris Brands and others v. Oriental Republic Of Uruguay, ICSID Case No. ARB/10/7, Award (8 July 2016)

  91. 91. Renco Group INC v. Republic of Peru, UNCITRAL Case No. UNCT/13/1 Partial Award on Jurisdiction (15 July 2016)

  92. 92. CC/DEVAS (Mauritius) LTD. And others v. The Republic of India, PCA Case No. 2013-09, Award on Jurisdiction and Merits (25 July 2016)

  93. 93. CEAC Holdings Limited v. Montenegro, ICSID case No. ARB/14/8, Award (26 July 2016)

  94. 94. Rusoro Mining Limited v. The Bolivarian Republic of Venezuela, ICSID case No. ARB(AF)/12/5, Award (22 August 2016)

  95. 95. Victor Pey Casado and Foundation “Presidente Allende” v. Republic of Chile, ICSID Case No. ARB/98/2, Award (13 September 2016)

  96. 96. Pac Rim Cayman LLC v. The Republic of El Salvador, ICSID Case No. ARB/09/12, Award (14 October 2016)

  97. 97. Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26, Award (8 December 2016)

  98. 98. Republic of Croatia v. MOL Hungarian Oil and Gas PLC., PCA case No. 2014-15, Award (23 December 2016)

  99. 99. BLUSUN S.A and other v. Italian Republic, ICSID Case No. ARB/14/3, Award (27 December 2016)

  100. 100. Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Reconsideration and Award (7 February 2017)

  101. 101. Tomasz Częścik and Robert Aleksandrowicz v. Cyprus, SCC Case No. V 2014/169, Award (11 February 2017)

  102. 102. Venezuela Holdings, B.V. and others v. Bolivarian Republic of Venezuela, ICSID case No. ARB/07/27, Decision on Annulment (9 March 2017)

  103. 103. I.P. Busta and J.P. Busta v The Czech Republic, SCC Arbitration Case No. V2015/014, Award (10 March 2017)

  104. 104. Anglia Auto Accessories Limited v. The Czech Republic, SCC Arbitration Case No. V2014/181, Award (10 March 2017)

  105. 105. Suez, Sociedad General De Aguas De Barcelona S.A. and Vivendi Universal S.A. v. Argentine Republic, ICSID Case No. ARB/03/19, Decision on Annulment (5 May 2017)

  106. 106. PL Holdings S.à.r.l. v. The Republic of Poland, SCC Case No. V2014/163, Partial Award (28 June 2017)

  107. 107. Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic, ICSID case No. ARB/09/1, Award (21 July 2017)

  108. 108. Société Resort Company Invest Abidjan, Stanislas Citerici and Gérard Bot v. Republic of Côte d’Ivoire, ICSID case No. ARB/16/11, Decision on Jurisdiction (1 August 2017)

  109. 109. Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan, ICSID case No. ARB/13/1, Award (22 August 2017)

  110. 110. Caratube International Oil Company LLP and Mr. Devincci Salah Hourani v. Republic of Kazakhstan, ICSID Case No. ARB/13/13, Award (27 September 2017)

  111. 111. Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21, Award (30 November 2017)

  112. 112. Deutsche Telekom Ag v. The Republic of India, PCA Case No. 2014-10, Interim Award (13 December 2017)

  113. 113. Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Award (16 May 2018)

  114. 114. Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB/14/32, Decision on Jurisdiction (29 June 2018)

  115. 115. Georg Gavrilović And Gavrilović D.O.O. v. Republic of Croatia, ICSID Case No ARB/12/39, Award (26 July 2018)

  116. 116. Lion Mexico Consolidated LP v. United Mexican States, ICSID Case No. ARB(AF)/15/2, Decision on Jurisdiction (30 July 2018)

  117. 117. Chevron Corporation (“Chevron”) And Texaco Petroleum Company (“Texpet”) v. Republic of Ecuador, PCA Case NO. 2009-23, Second Partial Award on Track II (30 August 2018)

  118. 118. David Aven et al. v. Republic of Costa Rica, ICSID Case No. UNCT/15/3, Final Award (18 September 2018)

  119. 119. UP (formerly Le Chèque Déjeuner) and C.D Holding Internationale v. Hungary, ICSID Case No. ARB/13/35, Award (9 October 2018)

  120. 120. Bernhard von Pezold and Others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, Decision on Annulment (21 November 2018)

  121. 121. South American Silver Limited v. The Plurinational State of Bolivia, PCA Case No. 2013-15, Award (22 November 2018)

  122. 122. RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à r.l. v. Kingdom of Spain, ICSID Case No. ARB/13/30, Decision on Responsibility and on the Principles of Quantum (30 November 2018)

  123. 123. Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. The Argentine Republic, ICSID Case No. ARB/03/17, Decision on Annulment (14 December 2018)

Footnotes

*

Earlier versions of this article were presented at the European Society of International Law’s Annual Conference (University of Manchester, September 2018), the Workshop on ‘Sociological Perspectives on International Tribunals’ (Max Planck Institute Luxembourg for Procedural Law, November 2018), the Workshop on ‘The Paths of Change in International Law’ (Graduate Institute of International and Development Studies, June 2019), and the ‘Workshop on The Legitimate Role for Investment Law and Arbitration in Protecting Human Rights’ (PluriCourts, University of Oslo, September 2019) and I am grateful to the participants in those fora for their valuable comments. I am particularly grateful to Caroline Henckels (Monash University Law Faculty) for sending her insightful comments. I would also like to thank Dvir Ezra, Shani Friedman, Ohad Abrahami, and Jiries Elias (Hebrew University Law Faculty) for excellent research assistance.

References

1 See, e.g., C. Reiner and C. Schreuer, ‘Human Rights and International Investment Arbitration’, in P. M. Dupuy, F. Francioni and E. U. Petersmann (eds.), Human Rights in International Investment Law and Arbitration (2009), 82, at 90; M. Hirsch, ‘Investment Tribunals and Human Rights: Divergent Paths’, in ibid., 97, at 106–7; B. Choudhury, ‘Democratic Implications arising from the Intersection of Investment Arbitration and Human Rights’, (2009) 46 Alberta Law Review 983, at 988–90. See also E. De Brabandere, ‘Human Rights Considerations in International Investment Arbitration’, in M. Fitzmaurice and P. Merkouris (eds.), The Interpretation and Application of the European Convention of Human Right (2013), 183, at 191, 208.

2 Urbaser S.A. v. Argentina, ICSID Case No. ARB/07/26, Award of 8 December 2016, at paras. 1193–221.

3 See, also, e.g., Tulip v. Turkey, ICSID Case No. ARB/11/28, Decision on Annulment, 30 December 2015, paras. 86–98, and additional awards discussed below.

4 The survey examines decisions of investment tribunals published on the italaw.com website that were rendered from 1 January 2010 to 31 December 2018. The survey includes investment awards published on this website by 13 October 2019. These decisions include jurisdictional awards, awards on the merit, final awards, reports of ICSID Annulment Committees, and similar decisions, Thus, for example, decisions regarding stay of enforcement, expedited procedure, and procedural orders are not included in the survey.

5 For example, references to ‘human rights’ are occasionally included in the citations of ICJ judgements that do not address human rights, or in the citations of certain Reports of the International Law Commission concerning general rules of international law.

6 For the list of all decisions, see Annex.

7 Annex, Cases No. 5, 14, 15, 16, 23, 25, 27, 28, 32, 50, 53, 64, 76, 77, 80, 87, 90, 91, 97, 99, 100, 112, 114, 116, 117, 118, 121, 122.

8 See, e.g., Urbaser v. Argentina, supra note 2; Impregilo v. Argentina, ICSID Case No. ARB/07/17, Award, 21 June 2011; Tulip v. Turkey, supra note 3; EDF International v. Argentina, ICSID Case No. ARB/03/23, Award, 11 June 2012; Al-Warraq v. Indonesia, UNCITRAL, Final Award, 15 December 2014; Philip Morris v. Uruguay, ICSID Case No. ARB/10/7, Award, 8 July 2016.

9 See, e.g., Total v. Argentina Republic, ICSID Case No. ARB/04/01, Decision on Liability, 27 December 2010; Burlington v. Ecuador, ICSID Case No. ARB/08/5, Decision on Reconsideration and Award, 7 February 2017; Quiborax v. Bolivia, ICSID Case No. ARB/06/2, Award, 16 September 2015.

10 See, e.g., Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/1, Award, 7 December 2011; Grand River v. United States, UNCITRAL, Award, 12 January 2011.

11 Annex, Cases No. 9, 24, 30, 40, 43, 59, 59a, 59b, 69, 74, 107.

12 See, e.g., Bernhard von Pezold v. Zimbabwe, ICSID Case No. ARB/10/15, Award, 28 July 2015; White Industries v. India, UNCITRAL, Final Award, 30 November 2011; Renta 4. v. Russia, SCC Case no. 24/2007, Award, 20 July 2012; RosInvestCo v. Russia, SCC Arbitration V Case No. 079/2005, Award, 12 September 2010.

13 See, e.g., The Rompetrol v. Romania, ICSID Case No. ARB/06/3, Award, 6 May 2013; Yukos v. Russia, UNCITRAL PCA Case No. AA 227, Final Award, 18 July 2014.

14 Annex, Cases No. 1, 6, 7, 8, 11, 12, 13, 17, 19, 20, 22, 35, 36, 37, 41, 42, 47, 48, 49, 52, 54, 55, 56, 60, 61, 62, 67, 70, 73, 75, 78, 79, 83, 84, 85, 86, 92, 95, 96, 101, 103, 104, 105, 106, 110, 111, 115, 119, 123.

15 See, e.g., Balkan Energy v. Ghana, PCA Case No. 2010-7, Interim Award, 22 December 2010; Pacific Rim v. El Salvador, ICSID Case No. ARB/09/12, Award, 14 October 2016; Ioan-Micula, v. Romania, ICSID Case No. ARB/05/20, Final Award, 11 December 2013.

16 See, e.g., Adel A Hamadi Al Tamimi v. Oman, ICSID Case No. ARB/11/33, Award, 2 November 2015; Bear Creek v. Perú, ICSID Case No. ARB/14/21, Award, 30 November 2017.

17 See, e.g., Suez v. Argentina, ICSID Case No. ARB/03/19, Decision on Annulment, 5 May 2017.

18 Mondev. v. United States, ICSID Case No. ARB(AF)/99/2, Award, of 11 October 2002, at paras. 143–4.

19 Phoenix. v. Czech Republic, ICSID Case No. ARB/06/5, Award, 15 April 2009, at para. 78.

20 Urbaser v. Argentina, supra note 2, paras. 1193–1221.

21 Tulip v. Turkey, supra note 3, paras. 86–98.

22 S. Steininger, ‘What’s Human Rights Got to Do with It? An Empirical Analysis of Human Rights References in Investment Arbitration’, (2018) LJIL 31, at 35, 45. See also V. Kube and E.-U. Petersmann, ‘Human Rights Law in International Investment Arbitration’, (2016) 11 Asian Journal of WTO & International Health Law and Policy 65, at 71 (see also 68–9).

23 See, e.g., E. De Brabandere, ‘Human Rights and International Investment Law’, in M. Krajewski and R. T. Hoffmann (eds.), Research Handbook on Foreign Direct Investment (2019), 619, at 9. See also Steininger, ibid., at 34–5.

24 See, e.g., De Brabandere, ibid., at 625–6; N. Nicolas, ‘Recent Clauses Pertaining to Environmental, Labor and Human Rights in Investment Agreements’, Kluwer Arbitration Blog, 23 July 2019, available at arbitrationblog.kluwerarbitration.com/2019/07/23/recent-clauses-pertaining-to-environmental-labor-and-human-rights-in-investment-agreements-laudable-success-or-disappointing-failure, accessed 6 December 2019.

25 2017, Comprehensive Economic and Trade Agreement between Canada and the European Union and its Member States, OJ L 11/23, at the preamble; Annex 8-E Joint Declaration on Arts. 8.16, 9.8, 28.6, available at trade.ec.europa.eu/doclib/docs/2014/september/tradoc_152806.pdf.

26 2015, Agreement Between the Kingdom of Norway and … for the Promotion of and Protection of Investments, Arts. 6, 8(2), 11, 12, 31, available at www.regjeringen.no/contentassets/e47326b61f424d4c9c3d470896492623/draft-model-agreement-english.pdf.

27 2016, Reciprocal Investment Promotion and Protection Agreement between Morocco and Nigeria, Art. 18(2), available at pca-cpa.org/wp-content/uploads/sites/6/2016/01/Morrocco-Nigeria-BIT-2016.pdf.

28 2012, SADC Model Bilateral Investment Treaty Template with Commentary, Art. 15, available at iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf.

29 Model Text for the Indian Bilateral Investment Treaty, Art. 12.1(v), available at www.mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf.

30 Ministry of Foreign Affairs and Human Mobility (Ecuador), ‘Ecuador proposes new investment agreements that protect the country and defend human rights’ (2018), available at www.cancilleria.gob.ec/en/ecuador-proposes-new-investment-agreements-that-protect-the-country-and-defend-human-rights/.

31 2019, Netherlands Model of Investment Treaties, Arts. 5(3), 6(6), 7, 23, available at www.rijksoverheid.nl/ministeries/ministerie-van-buitenlandse-zaken/documenten/publicaties/2019/03/22/nieuwe-modeltekst-investeringsakkoorden.

32 OHCHR, ‘Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises’ – Zero Draft, 16 July 2018, Arts. 3(1) and 13(7), available at www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/DraftLBI.pdf.

33 OHCHR, ‘Guiding Principles on Business and Human Rights’, 2011, Arts. 11–15, available at www.ohchr.org/documents/publications/GuidingprinciplesBusinesshr_eN.pdf.

34 See, e.g., Council of Europe – Committee of Ministers, ‘Human rights and business’, Recommendation CM/Rec(2016)3, 2 March 2016, Arts. 22–23, available at edoc.coe.int/en/fundamental-freedoms/7302-human-rights-and-business-recommendation-cmrec20163-of-the-committee-of-ministers-to-member-states.html.

35 See, e.g., OECD, ‘Guidelines for Multinational Enterprises’, 2011, Arts. A(2), (9)–(12), available at www.oecd.org/daf/inv/mne/48004323.pdf.

36 See Sections 2.2 and 3.1.4 below.

37 On new procedural rules included in investment treaties concluded in 2018 see UNCTAD, ‘Reforming Investment Dispute Settlement: A Stocktaking’, (2019) 1 International Investment Agreements Issues Note 1; on new rules concerning transparency see paras. 8–10, and on arbitrators’ conflict of interest see paras. 7–9, 20, available at www.unctad.org/en/PublicationsLibrary/diaepcbinf2019d3_en.pdf.

38 ICSID, ‘Proposals for Amendment of the ICSID Rules’, (2020) 1 ICSID Working Paper No. 4, at Ch. X p. 331, available at icsid.worldbank.org/sites/default/files/WP_4_Vol_1_En.pdf.

39 UNCITRAL, ‘Rules on Transparency in Treaty-based Investor-State Arbitration’, 2014, [hereinafter UNCITRAL Transparency Rules].

40 United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, UN Doc. A/Res/69/116 (2014).

41 See, e.g., Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-fifth session, UN Doc. A/CN.9/935 (New York, 23–27 April 2018), para. 76; Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-seventh session, UN Doc. A/CN.9/970 (New York, 1–5 April 2019), para. 71.

42 European Commission, ‘Online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP)’, SWD(2015)3 final, 13 January 2015 [hereinafter EU 2015 Report on Consultation], at 88, available at www.trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153044.pdf.

43 M. Bauer, ‘Campaign-triggered mass collaboration in the EU’s online consultations: the ISDS-in-TTIP case’, (2015) 14 European View 121, at 124.

44 L. J. Eliasson and P. G. D. Huet, ‘TTIP negotiations: Interest groups, anti-TTIP civil society campaigns and public opinion’, (2018) 16 Journal of Transatlantic Studies 101, at 102–3.

45 On the results of this consultation see Section 4 below.

46 EU Commission, ‘Creating more investment opportunities in the EU and the US – Factsheet on Investment in the context of the TTIP’, 23 November 2015, available at trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153018.pdf; EU Commission, ‘TTIP textual proposal on investment protection and investment court system’, 12 November 2015, ch. II – Investment [hereinafter ‘TTIP textual proposal’], available at www.trade.ec.europa.eu/doclib/docs/2015/november/tradoc_153955.pdf.

47 TTIP textual proposal, ibid., Art. 2(1).

48 On the interactions between the ICS bilateral system and the multilateral MIC initiative see, e.g., European Commission, ‘Recommendation for a COUNCIL DECISION authorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes’, COM/2017/0493 final, 13 September 2017, at 1–3, 6, available at eur-lex.europa.eu/resource.html?uri=cellar:df96826b-985e-11e7-b92d-01aa75ed71a1.0001.02/DOC_1&format=PDF.

49 But the European Commission noted in the above Recommendation to the Council that ‘[a]ction by the Union at multilateral level cannot compromise the level of protection of fundamental rights in the Union’, ibid., at 6.

50 For an analysis of the ‘double hatting’ in investment arbitration see M. Langford, D. Behn and R. H. Lie, ‘The Revolving Door in International Investment Arbitration’, (2017) 20 Journal of International Economic Law 301.

51 See, e.g., M. Hirsch, Invitation to the Sociology of International Law (2015), 9 et seq.

52 See, e.g., R. Cotterrell, The Sociology of Law (1992), 44–65.

53 G. Ritzer, Introduction to Sociology (2015) 593–4; J. A. Weinstein, Social Change (2010), 1, at 9–10; J. Macionis, Sociology (2012), 565–6.

54 Weinstein, ibid., at 55–6; Macionis, ibid.

55 Additional sociological perspectives may also shed light on recent developments in this field, including the social conflict perspective and Bourdieusian approaches (emphasizing power relations, symbolic capital, and social hierarchies in investment arbitration). On power relations in international adjudication see M. Hirsch, ‘Introduction: Sociological Perspectives on International Tribunals’, Temple Journal of International and Comparative Law (forthcoming).

56 The term ‘social movement’ refers to a sustained and intentional collective effort, usually operating outside of established institutional channels, either to bring about or to resist social change: Ritzer, supra note 53, at 594. See also D. A. Snow, S. A. Soule and H. Kriesi, ‘Mapping the Terrain’, in D. A. Snow, S. A. Soule and H. Kriesi (eds.), The Blackwell Companion to Social Movements (2006), 3, at 11.

57 See, e.g., Weinstein, supra note 53, at 133–93; Ritzer, supra note 53, at 592–608; A. Giddens and P. Sutton, Sociology (2013), 994.

58 On ‘legal mobilization’ (legal strategies employed by social movements to promote social change) see M. McCann, ‘Law and Social Movements: Contemporary Perspectives’, (2006) 2 Annual Review of Law and Social Science 17; E. Lehoucq and W. Taylor, ‘Conceptualizing Legal Mobilization: How Should We Understand the Deployment of Legal Strategies?’, (2020) 45 Law & Social Inquiry 166.

59 Ritzer, supra note 53, at 594–604; Macionis, supra note 53, at 548; D. A. Snow, ‘Framing Processes, Ideology, and Discursive Fields’, in Snow, Soule and Kriesi, supra note 56 [hereinafter Snow, ‘Framing Processes’], at 380.

60 N. Pedriana, ‘From Protective to Equal Treatment: Legal Framing Processes and Transformation of the Women’s Movement in the 1960s’, (2006) 111 American Journal of Sociology 1718, at 1720–1; D. A. Snow, R. Vliegenthart and P. Ketelaars, ‘The Framing Perspective on Social Movements: Its Conceptual Roots and Architecture’, in Snow, Soule and Kriesi, supra note 56, at 392–3; Snow, ‘Framing Processes’, ibid., at 384; J. H. Turner, Contemporary Sociological Theory (2013), 429.

61 Turner, ibid., at 427–9.

62 E. Goffman, Frame Analysis: An Essay on the Organization of Experience (1974), 21.

63 Ibid., at 21.

64 Goffman, supra note 62, at 10, 21. See also Snow, ‘Framing Processes’, supra note 59, at 385. Goffman adds that, ‘frames’ refer to ‘definitions of a situation [that are] built up in accordance with principles of organizations which govern events – at least social ones …’: Goffman, supra note 62, at 10–11.

65 E. Goffman, ‘A reply to Denzin and Keller’, (1981) 10(1) Contemporary Sociology 60, at 63. See also Snow, ‘Framing Processes’, supra note 59, at 385.

66 See Goffman, supra note 62, at 201, 210.

67 G. Ritzer and J. Stepnisky, Sociological Theory (2013), 363.

68 Snow et al., in Snow, Soule and Kriesi, supra note 60, at 394; Snow, ‘Framing Processes’, supra note 59, at 384.

69 Snow et al., in Snow, Soule and Kriesi, supra note 60, at 393; Snow, ‘Frame’, in G. Ritzer and J. M. Ryan (eds.), The Concise Encyclopaedia of Sociology (2011), 235 at 235; Snow, ‘Framing Processes’, supra note 59, at 384–5.

70 Snow et al., in Snow, Soule and Kriesi, supra note 60, at 393.

71 Snow et al., ibid., at 395; R. D. Benford and D. A. Snow, ‘Framing Processes and Social Movements’, (2000) 26 Annual Review of Sociology 611, at 614.

72 Benford and Snow, ibid., at 614; Snow, ‘Framing Processes’, supra note 59, at 385.

73 Snow, ibid., at 380, 383–4; Snow et al., in Snow, Soule and Kriesi, supra note 60, at 396. On the selective nature of interpretative frames see D. Della Porta and M. Diani, Social Movements (2006), 76.

74 On Corporate Europe Observatory, its aims and activities, see Corporate Europe Observatory (CEO), ‘About CEO’, available at corporateeurope.org/about-ceo.

75 On the vision, mission and values of the Transnational Institute, see The Transnational Institute (TNI), ‘Mission’, available at www.tni.org/en/page/mission.

76 On this alliance of organizations see Stop ISDS, ‘Alliance’, available at stopisds.org/alliance/. On the Council of Canadians and their activities against Investment Arbitration see The Council of Canadians, ‘Investment Arbitration’, available at canadians.org/tags/investment-arbitration.

77 On European Federation for Investment Law and Arbitration see European Federation for Investment Law and Arbitration (EFILA), ‘About EFILA’, available at www.efila.org/about-efia/.

78 Eliasson and Huet, supra note 44, at 105.

79 Ibid., at 105, 109. See also Bauer, supra note 43, at 125.

80 Bauer, ibid., at 24–5. See also G. Monbiot, ‘This transatlantic trade deal is a full-frontal assault on democracy’, Guardian, 4 November 2013; S. Donnan and S. Wagstyl, ‘Transatlantic trade talks hit German snag’, Financial Times, 14 March 2014; M. Vaudano, ‘Le traité Tafta va-t-il délocaliser notre justice à Washington?’, Le Monde, 15 April 2014.

81 Bauer, supra note 43, at 124. On the role of online and social media publications see also, L. J. Eliasson and P. G. D. Huet, Civil Society, Rhetoric of Resistance, and Transatlantic Trade (2019), 3–6.

82 See, e.g., Corporate Europe Observatory (CEO), ‘Press’, available at corporateeurope.org/en/press.

83 See, e.g., regarding street protests in Germany, Eliasson and Huet, supra note 44, at 107. On various protest activities lodged by the ‘Stop TTIP’, see P. Graziano and M. Caiani, ‘Europeanization and Social Movements: The Case of the Stop-TTIP campaign’, Paper presented at the SGEU ECOR Conference, Trento, 15–18 June 2016, available at ecpr.eu/Filestore/PaperProposal/693a6f26-d799-4870-b257-36e7bafabd53.pdf; L. Buonanno, ‘The new trade deals and the mobilisation of civil society organizations: comparing EU and US responses’, (2017) 39 Journal of European Integration 795, at 796.

84 Eliasson and Huet, supra note 44, at 102–3, 106.

85 Ibid., at 107. See also Bauer, supra note 43, at 124; Donnan and Wagstyl, supra note 80.

86 See, e.g., Eliasson and Huet, ibid., at 107–8; Bauer, ibid., at 124. See also A. Reinisch, ‘The European Union and Investor-State Dispute Settlement: From Investor-State Arbitration to a Permanent Investment Court’, CIGI Investor-State Arbitration Series Paper No. 2, March 2016, at 8, available at www.cigionline.org/sites/default/files/isa_paper_series_no.2.pdf.

87 Eliasson and Huet, supra note 44, at 107.

88 P. G. Duran and L. J. Eliasson, ‘The Public Debate over TTIP and Its Underlying Assumptions’, (2017) 51 Journal of World Trade 23, at 23–5. See also Eliasson and Huet, ibid., 101–2.

89 On social movements’ pathways of influence see Section 3.1.4 below.

90 See Section 2.2 above.

91 Bauer, supra note 43, at 124.

92 Eliasson and Huet, supra note 44, at 102–3.

93 On the influence of the European Parliament and Civil Society groups on the European Commission’s position in this sphere see L. Puccio and R. Harte, ‘From arbitration to the investment court system (ICS): The evolution of CETA rules’, European Parliamentary Research Service In-Depth Analysis PE 607.251, June 2017, at 1, available at www.europarl.europa.eu/RegData/etudes/IDAN/2017/607251/EPRS_IDA(2017)607251_EN.pdf; N. Lavranos, ‘2019: the Year of the Big Harvest!’, Kluwer Arbitration Blog, 30 December 2018, available at arbitrationblog.kluwerarbitration.com/2018/12/30/2019-the-year-of-the-big-harvest/; B. Lange, ‘TTIP Negotiations Investment Protection: Investor-State Dispute Settlement (ISDS)’, European Parliament Legislative Train 11.2019, 20 November 2018, available at www.europarl.europa.eu/legislative-train/theme-international-trade-inta/file-ttip-investment-protection-investor-state-dispute-settlement-(isds).

94 ‘EU 2015 Report on Consultation’, supra note 42, at 10.

95 Ibid., at 3.

96 Ibid., at 10. See also CEO’s call to people to appeal to the EU Commission, CEO, ‘Still not loving ISDS: 10 reasons to oppose investors’ super-rights in EU trade deals’, 16 April 2014, available at corporateeurope.org/en/international-trade/2014/04/still-not-loving-isds-10-reasons-oppose-investors-super-rights-eu-trade

97 ‘EU 2015 Report on Consultation’, supra note 42, at 3.

98 Ibid., at 14.

99 Ibid.

100 Bauer, supra note 43, at 127.

101 European Commission, ‘Report presented today: Consultation on investment protection in EU-US trade talks’, 2015, available at europa.eu/rapid/press-release_IP-15-3201_en.htm.

102 On the EU permanent investment court initiative see Section 2.2 above.

103 Prior to the above civil society groups’ operations, public awareness to investment arbitration was low, and the investment arbitration community’s frame largely prevailed in the public’s previously held perception. See, e.g., Eliasson and Huet, supra note 44, at 105; Duran and Eliasson, supra note 88, at 33. See also A. Depalma, ‘Mexico Is Ordered to Pay a U.S. Company $16.7 Million’, New York Times, 31 August 2000.

104 See, e.g., R. Dolzer and C. Schreuer, Principles of International Investment Law (2012), 249; J. W. Salacuse, The Law of Investment Treaties (2010), 205.

105 See, e.g., C. Olivet and P. Eberhardt, Profiting from Injustice: How law firms, arbitrators and financiers are fuelling an investment arbitration boom (2012). On the ‘investment arbitration industry’ see at 7–9, 15–16.

106 See e.g., ibid., at 11; P. Eberhardt, C. Olivet and L. Steinfort, One Treaty To Rule Them All: The ever-expanding Energy Charter Treaty and the power it gives corporations to halt the energy transition (2018), 47.

107 Olivet and Eberhardt, ibid., at 11. See also Eberhardt, Olivet and Steinfort, ibid., at 47.

108 On ‘elite of law firms and lawyers’ see Olivet and Eberhardt, ibid., at 7, 15; Eberhardt, Olivet and Steinfort, ibid., at 8, 47, 95.

109 See, e.g. Eberhardt, Olivet and Steinfort, ibid., at 95, 47, 49–51; Olivet and Eberhardt, ibid., at 7–8, 22, 38–41.

110 Eberhardt, Olivet and Steinfort, ibid., at 22, 72.

111 See, e.g., Olivet and Eberhardt, supra note 105, at 7–8; Eberhardt, Olivet and Steinfort, ibid., at 47.

112 Olivet and Eberhardt, ibid., at 8.

113 See, e.g., Tecmed v. Mexico, ICSID Case No. ARB (AF)/00/2, Award, 29 May 2003, at para. 122; see also Azurix Argentina, ICSID Case No. ARB/01/12, Award, 14 July 2006, at para. 311.

114 See, e.g., Eberhardt, Olivet and Steinfort, supra note 106, at 95. See also ‘Rights for People, Rules for Corporations – Stop ISDS’, available at stopisds.org/.

115 Olivet and Eberhardt, supra note 105, at 7, 9.

116 Ibid., at 23.

117 Ibid., at 27. See also CEO, ‘Still not loving ISDS’, supra note 96.

118 Ibid., at 71.

119 Ibid., at 7. On concerns about arbitrators’ commitment to deliver fair and independent judgements see also Eberhardt, Olivet and Steinfort, supra note 106, at 47.

120 Olivet and Eberhardt, ibid., at 9, 11, 48; Eberhardt, Olivet and Steinfort, ibid., at 53, 95.

121 See, e.g., the cover page of Olivet and Eberhardt, ibid. See also the cover page for CEO, ‘Still not Loving ISDS’, supra note 96. See also ‘ISDS in numbers’, 8 October 2019, available at www.bilaterals.org/?isds-in-numbers.

122 See, e.g., Aguas del Tunari v. Bolivia, ICSID Case No. ARB/02/3, Letter from President of Tribunal Responding to Petition by NGOs to Participate as amici curiae, 29 January 2003.

123 On these invisible local communities in investment disputes see N. Perrone. ‘The “Invisible” Local Communities: Foreign Investor Obligations, Inclusiveness, and the International Investment Regime’, (2019) 113 AJIL Unbound 16.

124 See, e.g., Olivet and Eberhardt, supra note 105, at 7–8, 11, 13, 35; Eberhardt, Olivet and Steinfort, supra note 106, at 8, 19, 24, 68; P. Eberhardt, B. Redlin and C. Toubeau, Trading Away Democracy (2014), 2, 4, 11–12.

125 Olivet and Eberhardt, ibid., at 35.

126 See, e.g., C. N. Brower and S. Blanchard, ‘From “Dealing in Virtue” to “Profiting from Injustice”: The Case Against “Re-Statification” of Investment Dispute Settlement’, (2013) 55 HILJ 45. See also K. Hober, ‘Investment Treaty Arbitration and Its Future – If Any’, (2015) 7 Yearbook on Arbitration and Mediation 58.

127 See, e.g., EFILA, ‘A response to the criticism against ISDS’, 7 May 2015, available at efila.org/wp-content/uploads/2015/05/EFILA_in_response_to_the-criticism_of_ISDS_final_draft.pdf; N. Lavranos, ‘Countering Anti-ISDS Propaganda with Facts: An Uphill Battle’, Kluwer Arbitration Blog, 8 June 2015, available at arbitrationblog.kluwerarbitration.com/2015/06/08/countering-anti-isds-propaganda-with-facts-an-uphill-battle/. For additional publications of the EFILA see Publications, available at efila.org/publications/.

128 These responses will not be presented here due to space limitations and the objectives of this study.

129 On the diverse means employed by social movements, see Section 3.1.2 above.

130 On the significant influence of civil society groups on public opinion against ISDS and TTIP see L. J. Eliasson, ‘Transatlantic Trade Negotiations, Civil Society Campaigns and Public Opinion’, in D. Dialer and M. Richter (eds.), Lobbying in the European Union: Strategies, dynamics and trends (2019), 375, at 380–4; K. Hübner, A.-S. Deman and T. Balik, ‘EU and trade policymaking: the contentious case of CETA’, (2017) 39 Journal of European Integration 843, at 853; Buonanno, supra note 83, at 801–3; Duran and Eliasson, supra note 88, at 23–5. See also Eliasson and Huet, supra note 44, at 102; P. G. Duran and L. J. Eliasson, ‘The Public Debate over TTIP and Its Underlying Assumptions’, (2017) 51 Journal of World Trade 23, at 23–5.

131 On the influence of civil society groups on some EU member states see, e.g., Hübner et al., ibid., at 847, 852; Eliasson, ibid., at 375, 379; J. Greenwood, ‘Interest Representation in the EU: An Open and Structured Dialogue’, in D. Dialer and M. Richter (eds.), Lobbying in the European Union: strategies, dynamics and trends (2019), 21, at 27; Eliasson and Huet, ibid., at 108.

132 On the influence of social movements’ operation on the EU Commission see e.g., Eliasson, supra note 130, at 383–4; N. Gheyle and F. De Ville, ‘Outside Lobbying and the Politicization of the Transatlantic Trade and Investment Partnership’, in D. Dialer and M. Richter (eds.), Lobbying in the European Union: Strategies, dynamics and trends (2019), 339, at 348; Greenwood, ibid., at 27.

133 See Section 3.1.2 above. See also K. Yiannibas, ‘Democratizing International Trade and Investment Agreements in the European Union’, in B. Pérez De Las Heras (ed.), Democratic Legitimacy in the European Union and Global Governance: Building (2017), 353, at 354; Gheyle and De Ville, ibid., at 339; Greenwood, ibid., at 27.

134 See Section 3.1.3 above.

135 On the opposition of civil society groups to the EU investment court initiative see, e.g., Corporate Europe Observatory, ‘The zombie ISDS’, 17 February 2016, available at corporateeurope.org/en/international-trade/2016/02/zombie-isds.

136 On the ICS initiative see Section 2.2 above.

137 The explanation for the limited influence of social movements’ framing operations on investment arbitrators is discussed in Section 4 below.

138 See, e.g., Macionis, supra note 53, at 63, 194.

139 See, e.g., Olivet and Eberhardt, supra note 105, at 7.

140 Ibid., at 48–9.

141 See, e.g., ibid., at 72; European Parliamentary Research Service, ‘Investor-State Dispute Settlement (ISDS) State of play and prospects for reform’, Briefing PE 545.736, (January 2015), at 7, available at europarl.europa.eu/RegData/etudes/BRIE/2015/545736/EPRS_BRI(2015)545736_EN.pdf.

142 on Economic, Social and Cultural Rights (CESCR), General comment No. 24 on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, UN Doc. E/C.12/GC/24 (2017), at 13.

143 See, e.g., UN Human Rights Council, ‘Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights’, available at ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/IGWGOnTNC.aspx.

144 See, e.g., Report of the Independent Expert on the Promotion of a Democratic and Equitable International Order, UN Doc. A/70/285 (2015).

145 OHCHR, Mandates of the Working Group on the issue of human rights and transnational corporations and other business enterprises, OL ARM 1/2019, 7 March 2019, available at ohchr.org/Documents/Issues/Development/IEDebt/OL_ARM_07.03.19_1.2019.pdf.

146 See, e.g., A. Angelini et al., ‘An Open Letter to the Chair of UNCITRAL Working Group III Concerning the Reform of the Investor-State Dispute Settlement: Addressing the Asymmetry of ISDS’, 13 February 2019, available at www.eur.nl/en/news/erasmus-institute-public-knowledge.

147 As discussed in Section 4 below, this pressure was less influential within the investment arbitration community.

148 See Section 3.1.4 above.

149 On European Federation for Investment Law and Arbitration (EFILA), see Section 3.12 above.

150 N, Lavranos, ‘Profiting from Anti-ISDS Propaganda’, Kluwer Arbitration Blog, 11 October 2016, available at arbitrationblog.kluwerarbitration.com/2016/10/11/profiting-anti-isds-propaganda/. See also Duran and Eliasson, supra note 88, at 23–5; Eliasson and Huet, supra note 44, at 101–2. On the influence of anti-ISDS NGOs on the EU Commission’s initiative (discussed in Section 2.2 above, see, Lavranos, ‘2019: The Year of the Big Harvest!’, supra note 93. On the influence of NGOs’ pressure on the Netherlands (regarding the new Dutch Model BIT discussed in Section 2.1 above) see N. Lavranos, ‘A Rollercoaster: The First Half Of The Year 2018 For Bits And ISDS’, Kluwer Arbitration Blog, 9 July 2019, available at arbitrationblog.kluwerarbitration.com/2018/07/09/rollercoaster-first-half-year-2018-bits-isds/.

151 On the exceptional employment of human rights law to protect ‘third party interests’ by investment tribunals see Steininger, supra note 22, at 52–3, 55 (see also 48–9). See also Kube and Petersmann, supra note 22, at 93–4.

152 For a discussion of investment awards included in Group 1 see Section 2 above.

153 El Paso v. Argentina, ICSID Case No. ARB/03/15, Award, 31 October 2011, paras. 369, 401, 649; EDF v. Argentina, supra note 8, paras. 1059, 1172; Philip Morris v. Uruguay, supra note 8, paras. 302, 304, 395; Suez v. Argentina, supra note 17, paras. 28, 71, 255; Urbaser v. Argentina, supra note 2, paras. 726, 1097, 1206; Grand River v. USA, supra note 10, paras, 186, 211–12, 220; Total v. Argentina, supra note 9, paras. 64, 79, 163; Quiborax v. Bolivia, supra note 9, paras. 13, 26, 249; Aven v. Costa Rica, ICSID Case No. UNCT/15/3, Final Award, 18 September 2018, para. 420; South American Silver v. Bolivia, PCA Case No. 2013-15, Award, 22 November 2018, paras. 561, 640. It is noteworthy that while the tribunals in these cases took into the account the positions and rights of local groups and individuals, they did not necessarily find that these rights or positions justified the particular governmental measures vis-à-vis foreign investors.

154 On the ‘lethargic’ response of investment arbitration to reform attempts see M. Langford and D. Behn, ‘Can Investment Arbitration Fix Itself?’, EJIL:Talk!, 31 October 2018, available at ejiltalk.org/can-investment-arbitration-fix-itself/. On the ‘less-responsive’ reaction of investment arbitrators to public opinion see M. Langford and D. Behn, ‘Managing Backlash: The Evolving Investment Treaty Arbitrator?’, (2018) 29 EJIL 551, at 579 (see also 576–7).

155 It is noteworthy that the members of the investment arbitration community are somewhat indirectly influenced by social movements and public pressure. As discussed in Section 3.1.4 above, civil society groups criticizing ISDS influenced public opinion, which, in turn, influenced the position of EU member states and EU institutions concerning investment arbitration. The EU institutions and EU member states influenced investment arbitrators; e.g., through new treaty provisions (discussed in Section 2.1 above). In addition, arbitrators are also somewhat influenced by public opinion (see Section 3.2 above regarding civil society groups taking part in social control processes).

156 See Section 2.1 above.

157 See Section 4.1 above.

158 On the private legal culture prevalent in the investment arbitration community see Hirsch, Invitation to the Sociology of International Law, supra note 51, at 148–52.

159 See, e.g., T. Wälde, ‘The Present State of Research Carried Out by the English-Speaking Section of the Centre for Studies and Research’, (2007) Hague Academy Report on International Investment Law 63, at 75–6; See also Glamis v. United States, UNCITRAL, Award, 8 June 2009, para. 3; Romak v. Uzbekistan, PCA Case No AA280, Award, 26 November 2009, para. 171.

160 On the concept of ‘frame’ see Section 2.1.1; Schema constitutes generalized knowledge structure and abstract guidelines; assisting people in perceiving, interpreting and remembering items in the social world. See M. Hirsch, ‘Cognitive Sociology, Social Cognition and Coping with Racial Discrimination in International Law’, (2019) 30 EJIL 1319, at 1327 et seq., and see the references therein.

161 See Section 3.1.1.

162 P. DiMaggio, ‘Culture and Cognition’, (1997) 23 Annual Review of Sociology 263, at 269.

163 See, e.g., ibid., at 269.

164 K. Cerulo, ‘Mining the Intersections of cognitive sociology and neuroscience’, (2010) 38 Poetics 115, at 125–6.

165 With regard to professional groups see, e.g., E. Zerubavel, Social Mindscapes; An Invitation to Cognitive Sociology (1997), at 33; E. Zerubavel, Hidden in Plain Sight: The Social Structure of Irrelevance (2015), at 66.

166 See, e.g., Zerubavel, Social Mindscapes, ibid., at 14–15; Zerubavel, Hidden in Plain Sight, ibid., at 62–6.

167 See, Dolzer and Schreuer, supra note 104, at 154 et. seq.

168 See Section 2.1 above.

169 M. Hirsch, ‘The Sociological Dimension of International Arbitration: The Investment Arbitration Culture’, in T. Schultz and F. Ortino (eds.), Oxford Handbook of International Arbitration (forthcoming), at Section III.

170 See, e.g., S. Nappert, ‘Defining (And Defending) Values in International Arbitration’, (2019) The 2019 International Arbitration and Dispute Resolution Symposium, at 4.

171 See Section 3.1.3 above.

172 On these invisible local communities see Perrone, supra note 123.

173 On the historical evolution of transparency rules in international law see T. Neumann and A. Peters, ‘Transparency’, Max Planck Encyclopedia of International Procedural Law (2019), at 9–25.

174 See, e.g., Dolzer and Schreuer, supra note 104, at 286.

175 E. De Brabandere, ‘Amicus Curiae (Investment Arbitration) 2018’, in Max Planck Encyclopaedia of International Procedural Law (2019), at 13.

176 See, e.g., Dolzer and Schreuer, supra note 104, at 287; F. El-Hosseny, Civil Society in Investment Treaty Arbitration (2018), 90. See also J. A. Maupin, ‘Transparency in International Investment Law: The Good, the Bad and the Murky’, in A. Bianchi and A. Peters (eds.), Transparency in International Law (2013) 142, at 161–2, 171.

177 On amicus submissions see Section 5.2 below. Only a small minority of modern investment treaties expressly provide for the right of third parties to make a submission on a question of interpretation or application of a treaty. L. E. Peterson, ‘An In-Depth Look At ICSID’S Proposed Transparency Changes (Including Non-Disputing Party Participation)’, Investment Arbitration Report, 6 August 2018, available at www.iareporter.com/articles/an-in-depth-look-at-icsids-proposed-transparency-changes-including-non-disputing-party-participation/.

178 Prominently, Art. 6(1) regarding the hearing and Art. 3(1) regarding access to documents, UNCITRAL Transparency Rules, supra note 39.

179 See, e.g., 2008 Canada-Colombia Free Trade Agreement, Art. 830(2) regarding open hearing and Art. 830(1) regarding access to documents, available at www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/colombia-colombie/fta-ale/08.aspx?lang=eng. See also 2009 Canada-Romania BIT Annex C, Arts. A(1) and A(3) regarding public access to hearings and documents (respectively), available at treaty-accord.gc.ca/text-texte.aspx?id=105170&lang=eng. For an application of Art. 830(2) of the Canada-Colombia Free Trade Area see, e.g., Eco Oro v. Colombia, Procedural Order No. 6 – Decision on Non-Disputing Parties’ ICSID Case No. ARB/16/41, Application, 18 February 2019, paras. 38–40.

180 See 1965, Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (International Centre for Settlement of Investment Disputes) [ICSID Convention] 575 UNTS 159 Arts. 31(1)–(2). For the proposed amendment of the ICSID Arbitration rules in this sphere see Proposals for Amendment of the ICSID Rules, ICSID Working Paper No. 3, 2 August 2018, at rules 61–65, available at icsid.worldbank.org/sites/default/files/amendments/WP_3_VOLUME_1_ENGLISH.pdf. See also Maupin, supra note 176, at 153–4.

181 On additional justifications for transparency in international adjudication see A. Peters, ‘Towards Transparency as a Global Norm’, in A. Bianchi and A. Peters (eds.), Transparency in International Law (2013), 534, at 558–70; Neumann and Peters, supra note 173, at 30–44.

182 Peters, ibid., at 596–7.

183 See, e.g., Arts. 6(2) and 7, UNCITRAL Transparency Rules, supra note 39.

184 For the use of delayed broadcasting of arbitral hearing see, e.g., Gabriel Resources v. Romania, ICSID Case No. ARB/15/31, Procedural Order No. 19, 7 December 2018, paras. 73–4.

185 See N. Butler, ‘Non-Disputing Party Participation in ICSID Disputes: Faux Amici?’, (2019) 66 Netherlands International Law Review 143, at 172–3.

186 De Brabandere, ‘Amicus Curiae (Investment Arbitration) 2018’, supra note 175, at 3; E. De Brabandere, ‘NGOs and the Public Interest: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes’, (2011) 12 Chicago Journal of International Law, 85, at 94–5.

187 On the evolution of rules in this sphere see El-Hosseny, supra note 176, at 97 et seq.; De Brabandere, ‘Amicus Curiae (Investment Arbitration) 2018’, supra note 175, at 5–11; De Brabandere, ‘NGOs and the Public Interest’, ibid., at 101.

188 See Art. 44, ICSID Convention, supra note 180.

189 1976 Arbitration Rules (United Nations Commission on International Trade Law) [UNCITRAL Rules], UN Doc. A/31/98, Art. 17(1).

190 Methanex v. United States, UNCITRAL, Decision of the Tribunal on Petitions from Third Persons to Intervene as ‘Amici Curiae’, 15 January 2001, paras. 52–3.

191 See, e.g., 2006 ICSID Convention Regulations and Rules, rule 37(2); Art. 4(1), UNCITRAL Transparency Rules, supra note 39 and Art. 2, 2014 UN Convention on Transparency in Treaty-based Investor-State Arbitration, supra note 40.

192 See, e.g., 2019, European Union-Vietnam Investment Protection Agreement, Art. 3.51(2), available at investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5868/download; 2006, Canada–Peru Agreement for the Promotion and Protection of Investments, Art. 39, available at investmentpolicy.unctad.org/international-investment-agreements/treaty-files/626/download. On recently concluded investment treaties’ provisions regarding amicus curiae submissions see El-Hosseny, supra note 176, at 114–19; De Brabandere, ‘Amicus Curiae (Investment Arbitration) 2018’, supra note 175, paras. 26–8.

193 See, e.g., Art. 20(13), The Netherlands model Investment Agreement 2019, supra note 31; 2004, US Model BIT Art. 28(3) (as well as Art. 28(3) of the 2012 US Model BIT); available at ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf.

194 For an examination of investment tribunals’ decisions regarding amicus curiae petitions see Butler, supra note 185, at 152–71; El-Hosseny, supra note 176, at 119–33. See also E. Levine, ‘Amicus Curiae in International Investment Arbitration’, (2011) 29 Berkeley Journal of International Law 200, at 208–12.

195 De Brabandere, ‘Amicus Curiae (Investment Arbitration) 2018’, supra note 175, paras. 29–44. See also, e.g., Gabriel Resources v. Romania, supra note 184, para. 51.

196 In addition, the amicus curiae should not disrupt or unduly burden the arbitral proceedings, and the disputing parties should be given reasonable opportunity to present their observations on the submission; De Brabandere, ‘Amicus Curiae (Investment Arbitration) 2018’, ibid., para. 30.

197 Such approach is discernible in Art. 20(13), The 2019 Netherlands Model Investment Agreement, supra note 31.

198 Compare Aguas de Tunari v. Bolivia, ICSID Case No. ARB/02/3, Letter to NGO regarding petition to participate as amici curiae, 29 January 2003.

199 I. Uchkunova, ‘Not Arbitrary – Part II: Special Case of Application Of Arbitral Discretion. Functions Exercisable Proprio Motu In ICSID Arbitration’, Kluwer Arbitration Blog, 4 February 2013, available at arbitrationblog.kluwerarbitration.com/2013/02/04/arbitral-not-arbitrary-part-ii-special-case-of-application-of-arbitral-discretion-functions-exercisable-proprio-motu-in-icsid-arbitration/.

200 On ‘arbitrability’ of public policy issues see, e.g., I. Bantekas, ‘The Foundations of Arbitrability in International Commercial Arbitration’, (2008) 27 Austrian YBK of International Law 193, at 195.

201 On the fundamental link between the public interest and amicus curiae submissions in investment proceedings see, e.g., Methanex v. United States, supra note 190, para. 49; De Brabandere, ‘Amicus Curiae (Investment Arbitration) 2018’, supra note 175, para. 15; El-Hosseny, supra note 176, at 37–45; K. F. Gomez, ‘Rethinking the Role of Amicus Curiae in International Investment Arbitration’, (2012) 35 Fordham International Law Journal 510, at 543–5.