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The Creation of Elusive Investor Responsibility

  • Jean Ho (a1)
Extract

The issue of investor responsibility reveals a stubborn bias within international investment law. That law addresses mistreatment by host states of foreign investors but consistently fails to address investor misconduct in host states. The traditional emphasis on state responsibility in this context has allowed abusive, pollutive, and corrupt investor behavior to thrive. International investment law is the current object of scrutiny, criticism, and reform in large part because many see it as overprotecting investors. However, scholars and reformers have focused on state responsibility, tinkering with the legal and institutional conditions that determine the international wrongfulness of state conduct. Unless and until investor responsibility is integrated into international investment law reform, the overprotection of investors owing to an accountability gap will continue to undermine its legitimacy. This essay posits that the first step to integration is understanding why investor responsibility scrabbles to find purchase in international investment law. I argue that elusive investor responsibility was created by omission, with injurious consequences that highlight the need to alter, rather than accept, the status quo.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 United Nations Comm'n on International Trade Law Working Group III, Investor-State Dispute Settlement (2017 to present).

2 Edwin M. Borchard, Theoretical Aspects of the International Responsibility of States, 1 Zeitschrift für Ausländisches Öffentliches Reicht und Völkerrecht 223, 247 (1929).

3 L.F.H. Neer and Pauline Neer (U.S. v. Mex.), IV R.I.A.A. 60, 61–62 (1926).

4 Alexander P. Fachiri, International Law and the Property of Aliens, 10 Brit. Y.B. Int'l L. 32, 51 (1929).

5 Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said, 109 Colum. L. Rev. 1094, 1118, 1247–48 (2009).

6 David Scheffer, Corporate Criminal Liability Under the Rome Statute, 57 Harv. Int'l L.J. Online 35, 38 (2016).

7 Markos Karavias, Corporate Obligations Under International Law (2013). See also Silvia Steininger & Jochen von Bernstorff, Who Turned Multinational Corporations into Bearers of Human Rights? On the Creation of Corporate ‘Human Rights’ in International Law (Max Planck Institute for Comparative & International Law Research Paper No. 2018–25, 2018).

9 Lauge Poulsen & Emma Aisbett, When the Claim Hits: Bilateral Investment Treaties and Bounded Rational Learning, 65(2) World Polit. 273, 280, 296 (2013).

10 Cf. Metal-Tech v. Uzb., ICSID Case No. ARB/10/3, Award paras. 278–374 (Oct. 4, 2013).

12 Copper Mesa Mining v. Ecuador, PCA Case No. 2012–2, Award paras. 5.4, 5.39, 5.42 (UNCITRAL-Mar. 15, 2016) (redacted).

13 Perenco Ecuador v. Ecuador, ICSID Case No. ARB/08/6, Interim Decision on the Environmental Counterclaim paras. 34–42, 611 (Aug. 11, 2015).

14 Burlington Resources v. Ecuador, ICSID Case No. ARB/08/5, Decision on Counterclaims paras. 52, 79–117, 1075, 1099 (Feb. 7, 2017).

15 Copper Mesa Mining v. Ecuador, PCA Case No. 2012–2, Award paras. 5.42, 6.99 (UNCITRAL-Mar. 15, 2016) (redacted).

16 Urbaser v. Arg., ICSID Case No. ARB/07/26, Award para. 1206 (Dec. 8, 2016).

18 Copper Mesa Mining v. Ecuador, PCA Case No. 2012–2, Award paras. 5.65, 6,102, 7.30 (UNCITRAL-Mar. 15, 2016) (redacted).

20 Urbaser v. Arg., ICSID Case No. ARB/07/26, Award paras. 1196–99 (Dec. 8, 2016).

21 Id. at para. 1210.

22 Ilias Bantekas, Corporate Social Responsibility in International Law, 22 B.U. Int'l L.J. 309, 317–25 (2004).

24 Cf. Robert Howse & Ruti Teitel, Beyond Compliance: Rethinking Why International Law Really Matters, 1 Global Pol'y 127, 134 (2010).

25 Complete List of Cases Profiled – Lawsuits Against Companies, Business & Human Rights Resource Centre.

26 Most notably, Kiobel v. Royal Dutch Petroleum, 569 U.S. 108 (2013).

28 UN Env't Programme, Environmental Assessment of Ogoniland (2011).

30 Mission de l'Organisation des Nations Unies en République Démocratique du Congo (MONUC), Report of the Special Investigation into allegations of summary executions and other human rights violations by FARDC in Kilwa (Katanga Province) (2004).

31 The Kilwa Incident Transcript (testimony of Bill Turner), Australian Broadcasting Corporation (2005).

32 Hayley Tsukayama, Nintendo Faces Questions over “Conflict Mineral” Policy, Wash. Post (June 19, 2013).

33 Human Rights Council, Resolution 26/9, UN Doc. A/HRC/26/L.22/Rev.1 (June 24, 2014).

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