Sean Wilken KC and John McMillan examine the emerging role of human rights and environmental standards within international investment arbitration, an area traditionally concerned solely with protecting commercial interests. With reference to cases such as Chevron v Ecuador, Urbaser v Argentina and David Aven v Costa Rica, the article highlights growing tensions between private, contract‑based arbitral processes and the “diffuse rights” affected by investment activities.
Sean and John explore how tribunals have begun to acknowledge States’ ability to raise human and environmental arguments, while new-generation BITs, particularly the SADC Model BIT, go further by directly imposing social, environmental and human rights obligations on investors. These developments indicate a potential shift towards a more balanced investment regime that integrates broader public international law norms.
