Can International Investment Law Punish Investor’s Human Rights Violations? Copper Mesa, Contributory Fault and its Alternatives

Muchlinski, Peter

Abstract

Copper Mesa v Ecuador was the first award to assess the contribution of the investor’s human rights violations to the loss of their investment caused by the termination of its mining concession by the Respondent State. It found that the investor’s conduct acted as a contributory fault reducing the amount of compensation payable by the Respondent. It is argued that the contributory fault approach adopted in Copper Mesa is inappropriate for dealing with allegations of investor s human rights violations. By conflating causation, contributory fault and the unclean hands principle, the Tribunal effectively ignored the complex and unique questions of causation and responsibility involved in cases involving human rights violations by investors. The seriousness of proven investor human rights violations should render investor claims against resulting regulatory action inadmissible as a matter of international public policy. The note also addresses how investor conduct is treated in certain ‘new generation’ International Investment Agreement (IIA) provisions and concludes by considering how an IIA investor conduct clause should approach the human rights violations of investors.

Citation

Muchlinski, P. (2022). Can International Investment Law Punish Investor’s Human Rights Violations? Copper Mesa, Contributory Fault and its Alternatives. ICSID Review: Foreign Investment Law Journal, 37(1-2), 359-377. https://doi.org/10.1093/icsidreview/siab035

• Journal Article Type: Article
• Acceptance Date: Aug 9, 2021
• Publication Date: Mar 29, 2022
• Deposit Date: Nov 30, 2024
• Journal: ICSID Review: Foreign Investment Law Journal
• Print ISSN: 0258-3690
• Electronic ISSN: 2049-1999
• Publisher: Oxford University Press
• Peer Reviewed: Peer Reviewed
• Volume: 37
• Issue: 1-2
• Pages: 359-377
• DOI: https://doi.org/10.1093/icsidreview/siab035