Abstract

International investment law places obligations on States to protect the interests of foreign investors. However, States also bear the responsibility towards their citizens to uphold human rights and environmental standards as derived from the relevant human rights instruments. These two sets of obligations can create tension within Investor-State Dispute Settlement (ISDS), as pursuing one of these interests can come at the expense of another. Nonetheless, the emerging investment jurisprudence and scholarships support the application of the notions of regime interaction and cross-fertilisation in investment disputes. This essay analyses these concepts with reference to two cases. The recent landmark judgment of the Inter-American Court of Human Rights (IACtHR) in La Oroya v Peru has been picked up to conduct an experiment. The potential relevance and implications of La Oroya v Peru, if any, have been explored in the context of Renco v Peru (II), now pending before an investment tribunal. Both cases share extraordinary similarities in their fact pattern. The controversial and prospective aspects of both regime interaction and cross-fertilisation have been highlighted. It is argued that both doctrines have the potential to play a significant role in determining the substantive and procedural outcomes in Renco v Peru (II). The claims are corroborated by the existing literature and investment case laws, while also acknowledging the ultimate discretion of the tribunal.

This paper will be part of the fourth TDM Special Issue on "International Investment Arbitration - Environmental Protection and Climate Change Issues". More information here www.transnational-dispute-management.com/news.asp?key=1893