Study On The Protection Of Right To Water In International Investment Law

With the promotion of globalization, transnational trade, service and investment have all been developing at a dramatic speed. Also with the proliferation of total volume of foreign direct investment, the number of BITs signed between nations grows significantly, and the number of cases concerning dispute between nations and investors, arbitrated by the International Centre of Settlement of Investment Disputes(ICSID), has also touched its highest point in history. However, the rapid development of investment has revealed the other side of investment itself – possible adverse impact on the nationals of a certain country while stipulating economic development, creating jobs and prospering local society. These drawbacks may be covered by the overwhelming economic achievement at first, however, the passage of time exposes their existence. The writer has noticed the “Right to Water Crisis” – the name of the series of social problems when the Host State has opened up its water supply and sewage treatment industry for foreign investment. Especially, a good number of investment disputes involving Argentina at the beginning of this century have drawn the attention of the writer. Why did the Host State’s management measures combating infringement of its nationals’ right of access to sanitary water meet furious protest of foreign investors and been deemed violation of foreign investment protection rules thus triggering large sum of damage fee? Considering that most of the States involved in such kind of disputes are developing countries which are not able to maintain the basic living standard of its nationals, how could we strengthen the protection of “Right to Water” enjoyed by Host State’s nationals?To answer this question, the definition of the “Right to Water” should be clarified in the first place. Only when the advent, meaning and characteristic of this Right has been elaborated, can we move on to studying the relationship between the “Right to Water” and foreign investment, the leading cause to the outburst of the “Right to Water Crisis”. Therefore, the Chapter 1 will focus on the emergence and development of the “Right to Water” and its status under international law, special attention will be spared to analyze its character and nature of being a “emerging human right”.Chapter 2 will explore how “Right to Water” has been protected in international investment law by introducing typical cases in this regard. All the cases involved Argentina as a party and some of them are so typical that they are frequently referred to by scholars and some are new cases, being arbitrated by ICSID. The present dissatisfying status of the protection of “Right to Water” will be summarized thorough analyzing the factual background, core issues and arbitration decisions of these cases. The leading cause to this situation will then be studied, by ways of different faces including the facts, scholars’ opinions, and taking into account different aspects of international investment law. The causes includes the negligence of “Right to Water” protection of parties of international investment, which results in the absence of basic right protection clauses in the investment treaty, concession agreement, the international investment arbitration’s ignorance of public interests due to its origins in the international commercial arbitration.Chapter 3, based on the analysis of Chapter 2, will explore ways to perfect the “Right to Water” protection in international investment law from different aspects. The writer will consider how to adapt “Humanization Trend” of contemporary international law to the establishment of corporate social responsibilities, States’ promotion of international investment law’s reform, how the international investment arbitrators can adopt treaty interpretation rules as purpose-interpretation, harmonious interpretation to interpret the investment treaties in conformity with human right protection obligations of the Host State. Specially, the writer suggests transparency and participation reform of international investment arbitration is the way to cope with its “legality crisis”.Chapter 4 will highlight the developing trend of international investment law by introducing the recently reported “Trans-Pacific Partnership Agreement”(TPP). The writer will suggest China’s approaches of improving nationals “Right to Water” protection domestically and calling for China’s investors overseas to respect this Right of nationals of the Host State, under the backdrop of conducting “bringing in” and “going out” policy at the same time.