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Ghouri, Ahmad --- "From myopia to flashes of clear vision? Deciding interaction and conflict of treaties in investor-state arbitration after Urbaser v Argentina" [2019] ELECD 1501; in Gammage, Clair; Novitz, Tonia (eds), "Sustainable Trade, Investment and Finance" (Edward Elgar Publishing, 2019) 221

Book Title: Sustainable Trade, Investment and Finance

Editor(s): Gammage, Clair; Novitz, Tonia

Publisher: Edward Elgar Publishing

Section: Chapter 10

Section Title: From myopia to flashes of clear vision? Deciding interaction and conflict of treaties in investor-state arbitration after Urbaser v Argentina

Author(s): Ghouri, Ahmad

Number of pages: 35

Abstract/Description:

The common citizenry rights, such as the rights to health, safety and the environment, are frequently at stake in investor-State disputes. Such citizenry rights – now often framed in terms of sustainable development concerns – are protected by many international treaties, as well as under domestic laws and constitutions. When such rights are protected by treaties, they may have a bearing on the subject matter of an investor-State dispute as provided by the Vienna Convention of the Law of Treaties (VCLT) rules on treaty interpretation. However, investor-State arbitration tribunals have struggled to take appropriate account of citizenry rights when deciding on foreign investors rights in investment treaties. This chapter investigates the extent to which investment tribunals are required to consider conflicting rights protected by different treaties made by a State and explores the implications arising from such considerations. The chapter illustrates that the VCLT rules on treaty interpretation provide clear legal bases to consider conflicting rights contained in different treaties. By analysing existing interpretive inconsistencies in investor-State arbitration cases leading to the recent Urbaser award, the chapter argues that investor-State tribunals have not fully benefitted from the relevance, interaction and conflict of rights found in various treaties to support the development of international investment law as a responsible legal and policy framework that adheres to promote sustainability.