The European Journal of International Law Vol. 20 no. 3 © EJIL 2009; all rights reserved
Access to Justice, Denial of Justice and International Investment Law
* Of the Board of Editors. This article is part of a larger research project on the role of human rights in international arbitration, funded by the Research Council of the European University Institute (EUI). The author wishes to thank his colleagues Professors P.M. Dupuy and E.U. Petersmann for the cooperative effort in promoting this project and V. Vadi, Ph.D candidate at the EUI, for her valuable research assistance on investment arbitration practice. Email: francesco.francioni{at}eui.eu
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Abstract |
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The development of investment arbitration in contemporary international law has helped to consolidate access to justice as a principle of both customary law on the treatment of aliens and human rights law. This development has also contributed to the emancipation of individuals and private entities from the traditional institution of diplomatic protection by opening to them direct access to international dispute settlement mechanisms. At the same time, this development has raised questions whether the far-reaching penetration of foreign investment guarantees into areas of national regulation of public interest should not be counterbalanced by corresponding opportunities for access to justice and the availability of remedies for civil society in the host state. This article examines the relevant recent practice on this matter and argues that access to justice may be a unifying principle to afford protection, both at the substantive and procedural levels, to investors and peoples negatively affected by the investment, both in the territory of the host state and abroad.