Research On The Legal Application Of Human Rights Law Rules In International Investment Arbitration

As international investment plays an increasingly important role in the international economy,there are more and more rights conflicts especially between foreign investors and the host country.The number of cases involving human rights protection in international investment conflicts.Any party may raise human rights violations related to disputed behavior in international investment arbitration.For examples,the expropriation measures taken by the host country against foreign investors,or the damage to collective human rights in the host country caused by the investment behavior of foreign investors.With the emergence of more and more such cases in the ICSID arbitration practice,what law should the arbitration court to apply? Can the relevant host country human rights law and international human rights law become applicable laws? What is the order of application?Article 42 of the ‘Washington Convention' stipulates the ICSID's law application rules in arbitration: 1)laws that the parties may agree to apply;2)in the absence of such laws,the arbitral tribunal can decide to apply the host country's domestic law,or Human Rights Rules of international law.If the domestic laws of the host country are applied,it will inclined to the national interests of the host country,some acts of the host country,such as illegal expropriation,may be legal in its domestic law,while it is an absolute violation of human rights under the relevant international human rights law.There may be consistency between the protection of domestic human rights in the host country and the protection of foreign investors in the international human rights conventions.That is,the human rights clauses stipulated in the international human rights conventions are basic and universally applicable to individual and natural human rights.In this case,if the foreign investor is a multinational company,which means the company cannot enjoy the rights of natural persons stipulated in the Convention.And the protection of the investment rights of foreign investors is not conducive to maintaining the principle of goodness and fairness,and it is also not conducive to the future development of international investment settlement as an important investment dispute settlement mechanism.In practice,the response of the arbitration tribunal to this is also different.In the case of Von Pezold v.Zimbabwe,the arbitral tribunal held that ‘General principles of international Law' only include general international law rules related to bilateral investment agreements.Even if there is no law that the parties may agree to apply,the human rights law rules cannot be applied.In the Al Warraq v.Indonesia case,the arbitral tribunal held that the ‘Covenant on Civil and Political Rights' is a part of customary international law,and the arbitral tribunal can invoke its content to determine human rights related issues.In the Urbaser v.Argentina case,the arbitral tribunal recognized the host country's human rights counterclaim for the first time,protecting the host country's domestic human rights between the foreign investor and the host country's domestic human rights,but without providing an explanation on the application of the law.It can be concluded from the perspectives of legality and practice that the human rights issue in international investment arbitration has become an issue that needs to be solved and explored urgently.The probable application of human rights law rules has become an important link in solving the above problem.International Investment Law and International Human Rights Law are inherently different branches of international law.There is an increasing need to explore the applicable issues in international investment arbitration.Clarifying the application of human rights rules in international investment arbitration is the only useful and efficient way that we can ease the conflicts between International Investment Law and International Human Rights Law,and protect legitimate interests in international investment,stabilize the international investment order and promote international investment development.