49 Colum. J. Transnat'l L. 670 (2010-2011)
Exception Provisions as a Gateway to Incorporating Human Rights Issues into International Investment Agreements

handle is hein.journals/cjtl49 and id is 676 raw text is: Exception Provisions as a Gateway to
Incorporating Human Rights Issues into
International Investment Agreements
BARNALI CHOUDHURY*
Linkages between investment law and other areas of
international law remain largely obscure. In particu-
lar, investment arbitral tribunals tend to separate in-
vestment issues from human rights issues despite the
increasing number of disputes that implicate both ar-
eas. In part, this separation of issues stems from a
primary focus on the economic aspects of foreign in-
vestment. Yet beyond their economic components, in-
ternational investment agreements (IIAs) contain a
social dimension, as foreign investment directly im-
pacts social, political and environmental issues. Con-
sequently, international investment law should be re-
conceptualized in order to realize both the economic
and social aspects offoreign investment.
One way to achieve these twin aims is through the use
of exception provisions that allow states to derogate
from their IIA obligations under specified conditions.
Although human rights are generally not a specified
condition allowing derogation, several types of excep-
tion provisions are broad enough to encapsulate hu-
man rights obligations in their ambit if interpreted
broadly.
Recently, several investment arbitral tribunals have
interpreted exception provisions in investment treaties
* Assistant Professor, McGill University, Faculty of Law. An earlier draft of this
work was presented at the Society of International Economic Law's biennial conference in
Barcelona, Spain. Thanks are due to the conference participants and in particular to Jurgen
Kurz, Jonathan Marcantel, Philip Dawson and Anne van Aaken.

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