Re-Politicising International Investment Law in Latin America through the Duty to Regulate Paradigm

Preface
Contents
Abbreviations/Acronyms
Chapter 1: Introduction
	1.1 Setting the Scene
		1.1.1 The Ways and Moments in Which IIL Frustrates States´ Protection of Human Rights in Latin America
		1.1.2 The Functional Underpinning of IIL as the Reason Behind the Limited Success of Human Rights Argumentation in States´ Fav...
		1.1.3 The Need for Re-politicising IIL in View of Its Increasing Problematic Interplay with States´ Protection of Human Rights
	1.2 Hypothesis, Aims and Structure of This Study
	1.3 Methodology and Significance
	References
Chapter 2: The Politicisation of International Legal Instruments Protecting Foreign Investment in Latin America Through States...
	2.1 Politicisation Through States´ Articulation of the Right to Freely Determine the Legal Scope of Foreign Property Rights´ P...
		2.1.1 Definition of States´ Obligations vis-à-vis Foreign Nationals in Case of Pecuniary Damages
			2.1.1.1 Legal Doctrines and Domestic State Practice
			2.1.1.2 Regional State Practice
		2.1.2 Establishment of Limitations Upon Inter-State Arbitration of Diplomatic Protection Claims
			2.1.2.1 Denial of Justice and Local Remedies Rules
			2.1.2.2 By Means of the Calvo Clause in Investor-State Contracts
		2.1.3 Preliminary Conclusions
	2.2 Politicisation Through States´ Articulation of the Right to Expropriate Foreign Property (1930-1980)
		2.2.1 Definition of States´ Obligations Vis-à-vis Foreign Nationals in Case of Expropriation of Property Rights
			2.2.1.1 Domestic State Practice
			2.2.1.2 Regional State Practice
		2.2.2 Establishment of Limitations Upon International Arbitration of Investor-State Contract-Based Disputes
			2.2.2.1 National and Regional Practice
			2.2.2.2 Latin American Refusal to Adhere to the ICSID Convention
		2.2.3 Preliminary Conclusions
	2.3 De-Politicisation of International Legal Instruments Protecting Foreign Investment (1990-present)?
		2.3.1 Consolidation of the International Investment Treaty Regime
			2.3.1.1 National Approach Towards Investment Treaty Protection
				2.3.1.1.1 Ratification of Bilateral Investment Treaties (BITs)
				2.3.1.1.2 Ratification of International Arbitration Rules
			2.3.1.2 Regional Approach Towards Investment Treaty Protection
				2.3.1.2.1 South American Context
				2.3.1.2.2 For the Americas?
			2.3.1.3 Preliminary Conclusions
		2.3.2 Concerns About Investment Treaty-based Dispute Settlement
			2.3.2.1 The Interpretation and Application of States´ Obligation Under the FET Standard
			2.3.2.2 The Interpretation and Application of States´ Obligation in Cases of an Indirect Expropriation
			2.3.2.3 Preliminary Conclusions
		2.3.3 Re-Politicisation of IIL Through States´ Articulation of the Right to Regulate
			2.3.3.1 National Approaches
				2.3.3.1.1 Reformed IIAs
				2.3.3.1.2 Denunciation of BITs and the ICSID Convention
				2.3.3.1.3 The Adoption of CFIAs
			2.3.3.2 (Sub)regional Approaches
				2.3.3.2.1 Along the Pacific
				2.3.3.2.2 The UNASUR Centre for the Settlement of Investment Disputes
			2.3.3.3 Preliminary Conclusions
	2.4 Conclusion
	References
Chapter 3: The States´ Duty to Regulate Foreign Investment Activities Under IHRL As a Paradigm for Re-politicising IIL
	3.1 The Duty to Regulate in Universal Human Rights Law
		3.1.1 The Duty to Regulate in General
			3.1.1.1 The Duty to Regulate Under the UN Instruments
			3.1.1.2 The Duty to Regulate Under the ICESCR
		3.1.2 The Duty to Regulate in Furtherance of the Right to Water
			3.1.2.1 Legal Basis
				3.1.2.1.1 Universal Human Rights Treaties
				3.1.2.1.2 Customary International Law
					State Practice
					Opinio Juris
			3.1.2.2 Scope of Application
				3.1.2.2.1 In the Context of Foreign Investment in Water Facilities and Services
				3.1.2.2.2 In the Context of Foreign Investment Activities´ Pollution or Depletion of Water Resources
		3.1.3 Interim Conclusion
	3.2 The Duty to Regulate Under Inter-American Human Rights Law
		3.2.1 The Duty to Regulate in General
			3.2.1.1 The Duty to Regulate Under Inter-American Instruments
			3.2.1.2 The Duty to Regulate Under the ACHR
		3.2.2 The Duty to Regulate in Furtherance of Indigenous People´s Land Rights
			3.2.2.1 Legal Basis
				3.2.2.1.1 International Treaties and Non-binding Instruments
				3.2.2.1.2 Customary International Law
					State Practice
					Opinio Juris
			3.2.2.2 Scope of Application
				3.2.2.2.1 In the Context of Foreign Property Rights´ Interference with Indigenous People´s Rights to Possess Traditional Lands...
				3.2.2.2.2 In Cases Where Natural Resources´ Exploration and Exploitation Activities May Pose a Real and Imminent Risk upon Ind...
		3.2.3 Interim Conclusion
	3.3 Conclusion
	References
Chapter 4: Re-politicisation of IIL by States Through an Articulation of Their Duty to Regulate in IIAs
	4.1 Current Deployment of Human Rights Argumentation Before ISDS Tribunals
		4.1.1 Invoking IHRL as Applicable Law in ISDS?
			4.1.1.1 In Cases Arising in the Context of Investors´ Provision in the Drinking Water Services
			4.1.1.2 In Cases Arising Out of Investors´ Exploration and Exploitation Activities of Natural Resources
		4.1.2 Articulation of the Duty to Regulate on Questions of Substantive IIA Obligations
			4.1.2.1 On Questions of the FET Standard
			4.1.2.2 On Questions of Indirect Expropriation
		4.1.3 Articulation of the Duty to Regulate on Questions of Procedural IIA Rights
			4.1.3.1 On Questions of States´ Right to Challenge Tribunals´ Jurisdiction and/or the Admissibility of Investors´ Claims
			4.1.3.2 On Questions of States´ Right to Submit Counterclaims
		4.1.4 Interim Conclusion
	4.2 Required IIAs Reforms to Strengthen States´ Duty to Regulate in IIL
		4.2.1 Reformed IIAs Substantive Provisions
			4.2.1.1 Explicit Reference to States´ Duty to Regulate Protected Investment
			4.2.1.2 Imposing Investor Obligations
		4.2.2 Reformed IIAs Procedural Provisions
			4.2.2.1 Jurisdictional Clauses
			4.2.2.2 Counterclaims
		4.2.3 Interim Conclusion
	4.3 Legal Consequences Faced by States for Abstaining from Articulating Their Duty to Regulate in IIAs
	4.4 Conclusion
	References
Chapter 5: Re-politicisation of IIL by a Regional ISDS Tribunal Through Its Engagement with Inter-Regime Tensions
	5.1 Hypothetical Scenarios Likely to Cause Inter-Regime Tensions During the Conduct of Arbitration Proceedings
		5.1.1 ISDS Tribunal´s Review of States´ Measure Adopted in Compliance with a Human Rights Body´s Interim Measure
		5.1.2 A Provisional Measure Issued by an Investor-State Tribunal Encounters a Human Rights Body´s Interim Measure
	5.2 Legal Strategies Available to a Regional ISDS Tribunal for Settling Inter-Regime Tensions
		5.2.1 Tribunal´s Settlement of Inter-Regime Tensions by Itself
		5.2.2 Tribunal´s Settlement of Inter-Regime Tensions with the Assistance of Human Rights Bodies
	5.3 Additional Legal Strategies Conducive to Underpin Tribunal´s Engagement with Inter-Regime Tensions
	5.4 Conclusions
	References
Chapter 6: Conclusions and Outlook
Table of Cases
	International Court of Justice
	Mixed Claims Commissions
	Investor-State Arbitral Tribunals
	International Committee on Economic, Social and Cultural Rights
	Inter-American Court of Human Rights
	Inter-American Commission on Human Rights
	OECD National Contact Points
	Other Case Law
Table of Legal Instruments
	International Investment Agreements
	Universal Human Rights Instruments
	Inter-American Human Rights Instruments
	United Nations
	International Law Commission
	Economic Commission for Latin America and the Caribbean ECLAC
	United Nations Conference on Trade and Development
	League of Nations
	MERCOSUR
	Andean Common Market
	International Labour Organization
	Organization for Economic Co-operation and Development
	Organization of American States
	Pan American Union
	Human Rights Council
	International Committee on Economic, Social and Cultural Rights
	Constitutive Treaties of Mixed Claims Commissions
Other Conventions, International Instruments, and Related Links
Table of State Practice
	Constitutions, Laws and Others
	Domestic Courts
References