Originally from The Impact of EU Law on Commercial Arbitration

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INTRODUCTION

While the intersection between European human rights law and international investment law has been the subject of sporadic scholarship with respect to certain issues – such as the use of proportionality and the margin of appreciation in both regimes  – it has not been the subject of sustained analysis across the wide number of matters being addressed by investor-state dispute settlement (ISDS).  This essay begins to redress that gap. Section I describes how the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the case law interpreting it by the European Court of Human Rights (ECtHR or Strasbourg Court) are being used or cited by investor-state tribunals charged with interpreting international investment agreements (IIAs).  Section II advances general explanations for why this is occurring.  Section III examines more closely some of the ECHR references made in the widely publicized arbitral ruling issued on July 8, 2016, Philip Morris Brands v. Uruguay.   Section IV outlines some of the substantive issues (apart from proportionality and margin of appreciation) that elicit references to European human rights law and draws out some tentative lessons about the use (and possible misuse) of this law in ISDS.   Section V concludes. 
The basis for this study is a dataset of public treaty-based ISDS awards, rendered by ICSID and non-ICSID tribunals, from the first such award in 1990 through June 1, 2016.  That set of arbitral rulings, the PluriCourt Investment Treaty Arbitration Database (PITAD), among the most comprehensive available, contains 760 cases, including 515 resolved by either a dismissal on jurisdiction, or a partial or complete win for the claimant or respondent, or a discontinuance of the dispute.