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113 AJIL Unbound 1 (2019)

handle is hein.journals/ajilunbo113 and id is 1 raw text is: doi:10.1017 /aju.2018.97 INTRODUCTION TO THE SYMPOSIUM ON INVESTOR RESPONSIBILITY: THE NEXT FRONTIER IN INTERNATIONAL INVESTMENT LAW James Gathii* and Sergio Pug** This symposium focuses on the fact that investors enjoy a suite of rights and privileges without corresponding responsibilities in international investment law. The international investment regime is designed to redress the mistreatment of foreign investors, not foreign investor wrongdoing. Human rights systems, including regional courts, increasingly serve as a check on state misconduct, but consistently are unable to remedy abuses at the hands of business actors. Despite some progress, imposing responsibility on corporations for human rights abuses in foreign courts also remains elusive. When states have tried to use arbitration to challenge the miscon- duct of foreign investors within host states, investor-state arbitration tribunals have ignored these claims or have failed to find legal bases for investor responsibiliy. Is there a more promising future on the horizon for lawyers and advocates dissatisfied with the perceived imbalance between the rights conferred and the duties assigned to transnational corporations in today's interconnected world? This symposium looks at the possibilities and limits that currently exist under the investor-state dispute settlement (SDS) regime in its controversial yet changing context.' The symposium is timely, and it may serve to inspire ideas for the incremental, systemic, or paradigmatic reforms of international investment law aimed, in part, at averting investor over-protection.2 Reformists advocate the replacement of older investment treaties with newer ones containing numerous carve-outs for host state regulation, the replacement of confidential proceedings between disputing parties with transparent ones that give a voice to interested nondisputing parties, and the replacement of ad hoc arbitration with standing investment courts. Yet international investment law's propensity toward overprotection of businesses stems from its preoccupation with state responsibiity-not the (mis)behavior of powerful actors more generally. This can result in investors benefitting from the protection of international law against host state mistreatment, while largely evading responsibility for their misconduct towards the host state or local communities therein, including vulnerable and/or marginalized groups such as indigenous peoples. To some extent, current reforms treat the symptoms but not the cause of this disenchantment with international investment law. Perhaps the time has come to stop tweaking the level and mode of investor protection, and to firmly recenter the reformist agenda to include investor responsibility. In many domains, including the business and human rights context, key actors are now focusing on a remedy previously referred to as the forgotten pillar.3 In fact, a group of lawyers and scholars is currently working on a document titled Rules on Business * Loyola University Chicago School of Law. ** Universit ofAiiona College of Law. Sergio Puig & Gregory Shaffer, Impeifect Alternaives: Insitutional Choice and the Reform of nvestment La, 112 AJIL 361 (2018). 2 Anthea Roberts, Incremental Systemic, and Paradgmaic Reform of Investor-State Ariraon, 112 AJIL 410 (2018). 3 Lorna McGregor, Activane the Third Pillar of the UNGPs on Access to an Effective Remedy, EJIL: TAL! (Nov. 23, 2018). The American Society of International Law, James Gathii and Sergio Puig c 2019. This is an Open Access article, distributed under 1 the terms of the Creative Commons Attribution licence (http://creativecommons.org/1icenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

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