Annex_Article_3.pdf (466.45 kB)
Positing for balancing: investment treaty rights and the rights of citizens
Substantive bilateral investment treaty (BIT) rules have the potential to undermine the rights to health, safety and the environment of the citizens of host States if stricter State regulations to protect these rights amount to regulatory expropriation or breach other investment protection rights. This article argues that the rules created by BITs are comparable with and stand parallel to the rules created by the domestic laws of host States and BIT arbitral tribunals should balance these rights when they conflict with each other. BIT arbitral tribunals act as de facto courts since they enforce rights that are assertable against the public at large and not against the host State alone. Similar to the “rules” created by BITs, an analysis of the legal nature of “rights” created by BITs also reveals that they are comparable with the rights created by domestic laws of host States. The article articulates three legal arguments founded on substantive BIT clauses, human rights, and property rights on the basis of which, three specific rights, i.e., the rights to health, safety and the environment of citizens of host States may stand parallel to the rights created by BITs in favour of foreign investors. These arguments, both individually and pooled together,call for balancing these citizens’ rights with the rights of foreign investors arising from a BIT in the event of conflict.
History
Publication status
- Published
File Version
- Published version
Journal
Contemporary Asia Arbitration JournalISSN
1999-9747Publisher
The Arbitration Association of the Republic of China, National Taiwan University Press & Asian Center for WTO & International Health Law Policy, TaiwanIssue
1Volume
4Page range
95-119Department affiliated with
- Law Publications
Full text available
- Yes
Peer reviewed?
- Yes
Legacy Posted Date
2014-07-02First Open Access (FOA) Date
2014-07-02First Compliant Deposit (FCD) Date
2014-07-02Usage metrics
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