Investor Human Rights and Environmental Obligations: The Need to Redesign Corporate Social Responsibility Clauses

Abstract

Abstract The article explores the utility of corporate social responsibility (CSR) clauses in international investment agreements to achieve responsible investor conduct on human rights and environmental protection. It provides an empirical overview of the content of such CSR clauses and offers a critical analysis on how and why these clauses, regardless of their formulation, have not yet led to effective investor accountability. Building on the weaknesses identified, it proposes to design new clauses on ‘investor human rights and environmental obligations’ that incorporate established international standards of responsible conduct, such as the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises and the United Nations Guiding Principles on Business and Human Rights; directly address investors as duty-bearers; explicitly recognise affected communities as beneficiaries of the investor obligations; and clarify the central question of access to remedy by providing for clear mechanisms of foreign investor liability in both the domestic courts of the home State and of the host State, separated from any counterclaim a host State may raise in an arbitration proceeding.