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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