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Investors, States, and Stakeholders: Power Asymmetries in International Investment and the Stabilizing Potential of Investment Treaties

Critics of investment treaties contend that these treaties give investors excessive rights vis-a-vis host states, and undermine the latter’s ability to regulate to prevent corporate human rights abuses. Some even assert that investors are often now more powerful than host states, in part because of investment treaties. Consequently, calls for reform of international investment law often focus on modifying treaties to diminish investor rights or expand host state regulatory authority. This Article argues that, contrary to common perception, investors have a genuine need for treaty protections, and these do not unduly hinder host state regulatory prerogatives. Investment-related human rights abuses occur not because investment treaties deter host states from regulating, but because host states are sometimes disinclined to regulate — and may even commit abuses in their own right — as a result of financial considerations and other factors unrelated to treaty protections. Indeed, host states sometimes enter into an effective alliance with investors, resulting in a power asymmetry to the detriment of local stakeholders far greater than any that may exist between investors and states. This Article explains how investment treaties could and should be modified to buttress the position of local stakeholders — just as they presently do that of investors — empowering stakeholders to protect their own human rights, without the need to rely on their governments to do so on their behalf.