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On 29 March 2017, Emilie Gonin participated in the Geneva Talks on Foreign Investment in Africa organised by the University of Geneva. The event was moderated by Hamed El-Kady of UNCTAD and was attended by students, diplomats, practicing lawyers and law professors.
Professor Makane Mbengue of University of Geneva spoke about the Africa Practice. He insisted on the fact that the African continent had been very innovative in modernising investment treaties, including through the introduction of investor obligations in recent draft investment treaties and investment codes. He referred inter alia to the Southern African Development Community Draft Model Bilateral Investment Treaty and the Draft Pan-African investment code.
Nathalie Bernasconi-Osterwalder of the International Institute on Sustainable Development discussed the need for investor obligations and the form these obligations could take, including their nature, timing and means of enforcement.
Emilie Gonin discussed investment and human rights. She explained that, traditionally, the obligation that investment be made “in accordance with the law” of the host State has been interpreted very narrowly. She noted that some arbitral awards refer to customary international law in relation to the legality of the investment but they do not go as far as to require compliance with human rights treaties. This, she said, highlights both the difficulties arising out of the hybrid nature of investment treaty arbitration, a unique mechanism in international law, and the fragmentation of international law.
She then turned to the question of whether “having made an investment grants the investor human rights”. She focussed specifically on investors facing criminal proceedings. She noted that in Hydro S.r.l. and others v. Republic of Albania, ICSID Case No. ARB/15/28, the investors obtained a stay of extradition proceedings against them in the UK on the basis of an interim measure issued by the arbitral tribunal. She also referred to the case of Hesham T. M. Al Warraq v Republic of Indonesia in which Interpol withdrew the red notices against Messrs. Rafat Ali Rizvi and Hesham al-Warraq on the basis of findings made by the arbitral tribunal in its award.
Hamed El Kady of UNCTAD highlighted that the next step was for the draft treaties to become treaties. He noted that in this respect capital importing countries might find it difficult to impose their views on investor obligations to capital exporting countries.