Speaking on a panel discussion at London International Disputes Week (LIDW19), Oxfam general counsel Joss Saunders asked delegates “Who are these people, who are the arbitrators?” His presentation, which included “shocking stats,” is a “wake up call” said Clifford Chance partner Jessica Gladstone, chair of the panel.

Not in the room

Mr Saunders claimed when meetings on business and human rights are held, “the business general counsels don’t come.” He added, “The people taking the decisions are not there. They are not in the room.” However, he explained that for business general counsel and human rights advocates there is “No reason why they can’t work together.” The attention there is raises the question, he said, of which human rights are being considered and concluded it is usually of the claimant rather than citizens. He cited that a 2014 OECD study found that only 0.5 per cent of 2,107 investment treaties feature human rights considerations. Mr Saunders also referenced a study by Silvia Steininger, research fellow at the Max Planck Institute for Comparative Public Law and International Law. Dr Steininger’s study analysed a corpus of 46 textual documents of investor-state arbitration, revealing that in approximately 9 per cent of all concluded cases of investment arbitration an explicit human rights reference was found. However, Mr Sauders said there are “Tentative reasons to believe this is getting better,” suggesting that Amicus briefs are helping.

Apologetic arbitration

Dr Steininger argues the study debunks ‘the myth that human rights law and investment law are inherently in conflict with each other,’ and on the other hand, ‘corroborated the claim that, to date, human rights in the sense of third party interests (in particular economic and social rights as well as third-generation human rights) only played a very limited role in investment arbitration. Most of the time human rights references are used apologetically, and not even the state parties feel compelled to voice non investment concerns. This significantly reduces the legitimising effect of human rights references and analogies, as they cannot truly unfold their potential to balance investment and non-investment concerns.”