A/HRC/33/42 89. Where the right to regulate is not sufficiently protected in international investment agreements, general exceptions for measures aimed at the promotion of equality and addressing long-term historic discrimination, or specific exceptions and investor-State dispute settlement carve-outs in relation to measures addressing indigenous peoples’ rights, should be included.28 Specific exceptions should be developed in cooperation with indigenous peoples. 90. Jurisdiction clauses should prohibit claims taken: (a) In relation to investments that do not comply with the law, including international human rights law; (b) By shell or mailbox companies established in jurisdictions purely or primarily to take advantage of such protections in international investment agreements. 91. Investment protection, such as fair and equitable treatment, full protection and security and expropriation prohibitions, should only apply to established investments. They should not apply before consultations have been conducted to obtain indigenous peoples’ free, prior and informed consent or before contractual agreements are entered into with the concerned indigenous peoples. 92. International investment agreements and interpretative text should entitle States to file counterclaims for affirmative relief arising from investor interference with their obligations under international human rights law. Negotiation process 93. In accordance with the recommendations of the Special Rapporteur in her 2015 report to the General Assembly (A/70/301): (a) Appropriate consultation procedures and mechanisms should be developed in cooperation with indigenous peoples in relation to the drafting, negotiation and approval of international investment agreements, and their right to consultation should be guaranteed prior to the ratification of the Trans-Pacific Partnership; (b) Human rights impact assessments should be conducted of all trade and investment agreements, following the impact assessments carried out as part of the Guiding Principles on Business and Human Rights developed by the Special Rapporteur on the right to food. 94. States should negotiate international investment agreements in accordance with their international cooperation obligations under the International Covenant on Economic, Social and Cultural Rights and in keeping with the “clean hands” doctrine in relation to indigenous peoples’ rights. 95. States should negotiate international investment agreements in accordance with their international cooperative on obligations under international human rights law, and in keeping with the “clean hands” doctrine, through the conduct of human rights impact assessments, appropriate due diligence and knowledge generation in relation to all potential impacts on indigenous peoples’ rights, both at home and abroad. 28 20 See the model bilateral investment treaty of the International Institute for Sustainable Development.