A/HRC/29/28
could play a significant role in reducing a company’s human rights risks, contributing to a
company’s competitive advantage and strengthening its long-term financial stability.25
3.
International investment agreements and dispute settlements
29.
Carrying forward discussions about reforming the international investment
agreements regime, in February 2015 UNCTAD convened a range of stakeholders from the
investment and development community to identify strategies and action points for a
sustainable development friendly international investment framework and improved global
investment governance.26 The Guiding Principles can also serve as a useful reference for
addressing some of the current failures of the international investment agreements regime,
as they provide an agreed normative framework with benchmarks for assessing and
informing government and corporate action to assess and address the adverse human rights
impacts of business activities.
30.
The world of international investment is both complex and fluid, and is
characterized by a growing number of both international investment agreements and
investor-State dispute settlement cases. At the end of 2014 there were 3,268 such
international investment agreements and 608 known investor-State dispute settlement
cases.27 In particular, the increasing number of investor-State dispute settlement cases has
prompted debate about the legitimacy of the system, especially where high-profile
negotiations on international investment agreements have been the subject of public
controversy. The expansion in the use and interpretation of provisions in international
investment agreements to protect investors and subject disputes to binding international
arbitration has in a number of cases enabled investors to sue Governments for policies and
regulations introduced to pursue public interest goals, such as new labour standards and
environmental protection. The consequence may be that the States implicated are unable to
preserve adequate policy space to meet their human rights obligations.
31.
Some of the fundamental questions relating to reform of the international investment
agreements regime indicate the relevance of the Guiding Principles. For example, there is
an increasing realization that the success of investments requires not only the management
of social and environmental risks, but also of adverse impacts on people. However, there is
still not much experience in reflecting human rights risks in international investment tools.
Moreover, given that investment is intended to enable development, the question arises of
how investment tools should be designed to bolster, rather than undermine, the ability of
host States to protect human rights and realize development goals. Such perspectives and
experiences should be brought to the table in discussions on reforming the regime. The
Working Group also considers that there is a particular need for empirical research on the
links between the way in which investment agreements and arbitration operate and the
impact on enjoyment of human rights.
4.
Transparency in investment arbitration
32.
A significant opportunity for increasing transparency in the area of investor-State
arbitration has arisen from work of the Working Group on Arbitration and Conciliation of
the United Nations Commission on International Trade Law (UNCITRAL). The
UNCITRAL Working Group started working on transparency in 2010, with a mandate that
stressed the importance of ensuring transparency in investor-State dispute settlements
25
www.ungpreporting.org/early-adopters/investor-statement/.
26
http://unctad-worldinvestmentforum.org/followup-events/single-year-expert-meeting/.
27
UNCTAD, International Investment Agreements Issues Note No. 1, February 2015.
9
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