Applying corporate social responsibility to foreign investments: failures and prospects

As prominently stated by an arbitral tribunal called to adjudicate a dispute concerning a foreign investment procured by fraud: \u2018The 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\u2019. 1 For the reason that: international investment law [\u2026] cannot be read and interpreted in isolation from public international law, and its general principles [\u2026], 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 traf\ufb01 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 \ufb01 de investments) are internationally protected. 3 As a general principle of law, good faith \u2018protects certain \ufb01 nalities anchored in the common interest against excessive individualist pretenses\u2019; 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. Pol\ue1\u161ek, \u2018Unlawful or Bad Faith Conduct as a Bar to Claims in Investment Arbitration\u2019, in J. Werner and A.H. Ali (eds), Law Beyond Conventional Thought. A Liber Amicorum: Thomas W\ue4lde , London: Cameron May, 2009, pp. 277 ff.; A. Newcombe, \u2018Investor Misconduct: Jurisdiction, Admissibility or Merits?\u2019, in C. Brown and K. Miles (eds), Evolution in Investment Treaty Law and Arbitration , Cambridge: CUP, 2011, pp. 287 ff