I also feel investment treaty arbitration may be a sleeper option for foreign investors seeking to advance their free speech rights. I am wondering though, as a normative matter, whether there should be an “economic right/expectation” limitation to that. Investment treaty, however broad the term “investment” is defined, is to protect the economic right of investors, rather than the gamut of human rights. Granted, usually it is not impossible for a foreign investor to couch a free speech claim in the term of impairment to its economic interests, yet some times, the real motive is not economic, but political, i.e., using investment treaty protection to advance a political agenda. Should the investment tribunal distinguish between those different motives?

Amanda

Yes, that is another relevant consideration. My guess is that arbitrators would look at human rights law for analogies or guidance (as has been the case in other contexts in international investment arbitration e.g. looking at ECHR cases on expropriation or due process). They would be more inclined to do so, of course, if the parties argue points of human rights law in their briefs.

However, the real question is whether the same exceptions which apply to the right to freedom of expression (public morals, national security, etc.) can all be transposed into the investment context and used as exceptions to BIT provisions such as fair and equitable treatment.

I suspect we shall see much debate – and some actual practice – in due course.