Emilie Gonin speaks on investment and human rights at the University of Geneva

13.04.17 | |

 

 

On 29 March 2017, Emilie Gonin participated in the Geneva Talks on Foreign Investment in Africa organised by the University of Geneva.  The event was moderated by Hamed El-Kady of UNCTAD and was attended by students, diplomats, practicing lawyers and law professors.  

 

Professor Makane Mbengue of University of Geneva spoke about the Africa Practice.  He insisted on the fact that the African continent had been very innovative in modernising investment treaties, including through the introduction of investor obligations in recent draft investment treaties and investment codes.  He referred inter alia to the Southern African Development Community Draft Model Bilateral Investment Treaty and the Draft Pan-African investment code.  

 

Nathalie Bernasconi-Osterwalder of the International Institute on Sustainable Development discussed the need for investor obligations and the form these obligations could take, including their nature, timing and means of enforcement.

 

Emilie Gonin discussed investment and human rights.  She explained that, traditionally, the obligation that investment be made “in accordance with the law” of the host State has been interpreted very narrowly.  She noted that some arbitral awards refer to customary international law in relation to the legality of the investment but they do not go as far as to require compliance with human rights treaties.   This, she said, highlights both the difficulties arising out of the hybrid nature of investment treaty arbitration, a unique mechanism in international law, and the fragmentation of international law.  

 

She then turned to the question of whether “having made an investment grants the investor human rights”.   She focussed specifically on investors facing criminal proceedings.  She noted that in Hydro S.r.l. and others v. Republic of Albania, ICSID Case No. ARB/15/28, the investors obtained a stay of extradition proceedings against them in the UK on the basis of an interim measure issued by the arbitral tribunal.  She also referred to the case of Hesham T. M. Al Warraq v Republic of Indonesia in which Interpol withdrew the red notices against Messrs. Rafat Ali Rizvi and Hesham al-Warraq  on the basis of findings made by the arbitral tribunal in its award. 

 

Hamed El Kady of UNCTAD highlighted that the next step was for the draft treaties to become treaties.  He noted that in this respect capital importing countries might find it difficult to impose their views on investor obligations to capital exporting countries.  

« Back to listing

About cookies on our website

Following a revised EU directive on website cookies, each company based, or doing business, in the EU is required to notify users about the cookies used on their website.

Our site uses cookies to improve your experience of certain areas of the site and to allow the use of specific functionality like social media page sharing. You may delete and block all cookies from this site, but as a result parts of the site may not work as intended.

To find out more about what cookies are, which cookies we use on this website and how to delete and block cookies, please see our Which cookies we use page.

Click on the button below to accept the use of cookies on this website (this will prevent the dialogue box from appearing on future visits)