Originally from the Boundaries of Investment Arbitration

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A.   INTRODUCTION 

While the intersection between European human rights law and international investment law has been the subject of sporadic scholarship with respect to certain issues—such as the use of proportionality and the margin of appreciation in both regimes —it has not been the subject of sustained analysis across the wide number of matters being addressed by ISDS. This chapter begins to redress that gap first, by describing, in section B, how the ECHR and the case law interpreting it by the ECtHR are being used or cited by investor-state tribunals charged with interpreting IIAs. Part C advances general explanations for why this is occurring. Part D examines more closely a widely publicized arbitral ruling issued on July 8, 2016, Philip Morris Brands v. Uruguay, as a case study of when appeals to European human rights law are or are not successful.  Part E outlines some of the substantive issues (apart from proportionality and margin of appreciation) that elicit references to European human rights law and draws out some tentative lessons about the use (and possible misuse) of this law in ISDS.   

The basis for this study is a dataset of public treaty-based ISDS awards, rendered by ICSID and non-ICSID tribunals, from the first such award in 1990 through June 1, 2016. That set of arbitral rulings, the PluriCourt Investment Treaty Arbitration Database (PITAD), among the most comprehensive available, contained at the time of this analysis 760 cases, including 515 resolved by either a dismissal on jurisdiction, or a partial or complete win for the claimant or respondent, or a discontinuance of the dispute.  Of the 343 awards in this database not discontinued or settled through June 2016, 65, about 20%, contain references to the ECHR or ECtHR case law. These awards, listed in Appendix I, indicate that ISDS participants are making frequent references to European human rights law.