As prominently stated by an arbitral tribunal called to adjudicate a dispute concerning a foreign investment procured by fraud: ‘The protection of international investment arbitration cannot be granted if such protection would run contrary to the general principles of international law, among which the principle of good faith is of utmost importance’. 1 For the reason that: international investment law […] cannot be read and interpreted in isolation from public international law, and its general principles […], nobody would suggest that ICSID protection should be granted to investments made in violation of the most fundamental rules of protection of human rights, like investments made in pursuance of torture or genocide or in support of slavery or traffi cking of human organs. 2 These passages clarify that, according to some treaty-based tribunals, investment protection is strictly connected with and depends on compliance with good faith. Only investments made in accordance with the good faith principle ( bona fi de investments) are internationally protected. 3 As a general principle of law, good faith ‘protects certain fi nalities anchored in the common interest against excessive individualist pretenses’; 4 in so doing, it 1 Phoenix Action, Ltd. v. The Czech Republic , ICSID, ARB/06/5, 15 April 2009, para. 106. 2 Ibid . , para. 78. 3 On this topic, see A. Cohen Smutny and P. Polášek, ‘Unlawful or Bad Faith Conduct as a Bar to Claims in Investment Arbitration’, in J. Werner and A.H. Ali (eds), Law Beyond Conventional Thought. A Liber Amicorum: Thomas Wälde , London: Cameron May, 2009, pp. 277 ff.; A. Newcombe, ‘Investor Misconduct: Jurisdiction, Admissibility or Merits?’, in C. Brown and K. Miles (eds), Evolution in Investment Treaty Law and Arbitration , Cambridge: CUP, 2011, pp. 287 ff.

Applying corporate social responsibility to foreign investments: failures and prospects / A. Bonfanti (ROUTLEDGE RESEARCH IN INTERNATIONAL ECONOMIC LAW). - In: Foreign Investments, International Law and Common Concerns / [a cura di] T. Treves, F. Seatzu, S. Trevisanut. - [s.l] : Routledge, 2014. - ISBN 9780415816052. - pp. 230-246

Applying corporate social responsibility to foreign investments: failures and prospects

A. Bonfanti
Primo
2014

Abstract

As prominently stated by an arbitral tribunal called to adjudicate a dispute concerning a foreign investment procured by fraud: ‘The protection of international investment arbitration cannot be granted if such protection would run contrary to the general principles of international law, among which the principle of good faith is of utmost importance’. 1 For the reason that: international investment law […] cannot be read and interpreted in isolation from public international law, and its general principles […], nobody would suggest that ICSID protection should be granted to investments made in violation of the most fundamental rules of protection of human rights, like investments made in pursuance of torture or genocide or in support of slavery or traffi cking of human organs. 2 These passages clarify that, according to some treaty-based tribunals, investment protection is strictly connected with and depends on compliance with good faith. Only investments made in accordance with the good faith principle ( bona fi de investments) are internationally protected. 3 As a general principle of law, good faith ‘protects certain fi nalities anchored in the common interest against excessive individualist pretenses’; 4 in so doing, it 1 Phoenix Action, Ltd. v. The Czech Republic , ICSID, ARB/06/5, 15 April 2009, para. 106. 2 Ibid . , para. 78. 3 On this topic, see A. Cohen Smutny and P. Polášek, ‘Unlawful or Bad Faith Conduct as a Bar to Claims in Investment Arbitration’, in J. Werner and A.H. Ali (eds), Law Beyond Conventional Thought. A Liber Amicorum: Thomas Wälde , London: Cameron May, 2009, pp. 277 ff.; A. Newcombe, ‘Investor Misconduct: Jurisdiction, Admissibility or Merits?’, in C. Brown and K. Miles (eds), Evolution in Investment Treaty Law and Arbitration , Cambridge: CUP, 2011, pp. 287 ff.
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