The basic frameworks would change significantly. A policy ideal which can try to differentiate between protectionist actions and those carried out for legal non-commercial reasons is currently in conflict with NAFTA case-law, which in some cases states that motive for an action does not constitute a significant regard — a view sustained with customary international lawMany scholars contend that international investment contracts and arbitral practises hinder the capacity of governments to implement human rights policies and hence that investment treaties may contravene human rights as these last entail some state measures that would be inhibited by the latter.
The negotiating parties might also state that general rules and regulations are not expropriation. Another option is to exclude entirely certain kinds of regulatory efforts such as protection of the environment and resources. The purpose of the regulations is also to consider and to ensure that the measures are open only if they are intended to discriminate against or expropriate foreign investors or if they otherwise have an undesirable effect. A related question was whether the function is as suitable as a much more institutional body such as the WTO appeal board, or a body with wide experience in public international law, such as the International Court of Justice.
In numerous circumstances and approaches the link between human rights and international investment law is evident. In investment protection there are two main and wide-ranging approaches to substantive law: human rights can be utilised to support or expand investors’ claims or to improve state justification of its activities to safeguard and respect human rights. Investment law may also be seen as limiting the state’s ability to respect, safeguard and comply with human rights or as reinforcing the private rights of investors under International Investment Law on two aspects: investment law, in particular as being interpreted and implemented through Investment Tribunals. In substantive law the varied opinions mostly match distinct procedural arrangements in investor-state litigation. Firstly, the investor might submit or supplement his arguments with respect to human rights.
Secondly, the State may rely on human rights to advocate its acts or to make counterclaims. While it is provocative whether an investment court should systematically deal with the human rights commitments of a State whenever an investment agreement is in dispute, it should at least be clear to such tribunals that there may be negative consequences for the achievement of human rights or the likelihood of human rights breaches that investment treaties may have Third, an amicus curiae brief might address human rights. Fourth, the investment tribunal can deal with them regardless of the parties’ arguments or the amici’s arguments. The fact that States have traditionally negotiated bilateral investment treaties and agreements with investors without considering their human rights commitments or the stakeholders’ interest is the reason for the development of an international investment law.
The reason may be that, until conflicts indicated above became evident, international investment law and human rights seemed unconnected. State-investor conflicts are not understood by the courts as meriting conditions for countries that have opted to violate investor contracts to defend human rights in emergencies.A difference in the last opportunity may include a distinct or dissenting opinion on the subject of human rights by one arbitrator. These many methods and variations indicate that the link between human rights and international investment law is potentially conflict-built but also mutually strengthened.
Reference:
http://“Marc Bungenberg et al., International investment law”
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