The UN Guiding Principles on Business and Human Rights as an evolving regime: their contribution to International Investment Law and Arbitration

For many decades, the issue of regulation of multinational business has been in the research agenda of International Economic Law scholars especially in the aftermath of Second World War . At the same time, scholars of International Human Rights Law showed, until recently, little or no interest on the matter. Even in Europe, conflicting policies, lobbying, dogmas and ideologies have not helped to solve this puzzle and a proper regulation mix is still under discussion . Indeed, the UNGPs are a turning point in the history of Business & Human Rights even if they have some strengths and weaknesses. When, during a symposium in Bruxelles, I asked prof. John Ruggie, the UNGPs main drafter , why there was a gap on international investment. law and arbitration, he told me that the UNGPs as an “evolving framework” would ultimately have an impact on that. But what kind of impact can a soft law instrument such as that of the UNGPs have on the actual practice of International Investment Law? As recently as the late 1990s, “there was no recognition that companies had human rights responsibilities” . Therefore, the UNGPs are the point of arrival of a debate spanning almost a century. Human rights often will be engaged in the context of investment disputes, especially when disputes concern issues like equitable land reform, aboriginal rights, access to water or access to a clean environment. Hence, the Investor-State Dispute Settlement system has often been viewed by its critics as an advantage only for big corporate investors, being characterized by a structural imbalance between the rights of host States and investors . But even this statement is an oversimplification of the economic reality where hundreds of SMEs may become hostage of authoritarian or corrupted regimes once established in the host country: that is why we need International Investment Agreements (hereinafter IIAs). Big corporations can live well without most investment treaties since they can enter State contracts directly with the host State Government and threaten it to abandon the country leaving thousands of workers unemployed and destroy its investment-friendly reputation. All in all, the current regime is gradually evolving by fine tuning both the protection of investors’ rights and the regulatory space of States, in view of a common achievement of sustainable development objectives . And this is a big improvement. The UNGPs have emerged as a critical framework to regulate both States and investor accountability for business-related human rights harm. To this end, this essay will begin by considering the UNGPs as a dynamic regulatory regime affecting investments in Section 1. Section 2 will highlight the different gateways through which International Human rights Law interacts with International Investment law as evidenced by arbitration practice. Section 3 will take stock of such a peculiar evolving regime of International Law.