Theorizing Responsibility in the Investor State Dispute Resolution System

(Excerpt) The Investor-State Dispute System (“ISDS”) permits investors to sue states when their investments are injured. The system was designed to protect investors and impose responsibilities on states; it is uncontroversial to say that the ISDS system is one-sided. But a chorus of voices is now asking: should investors have responsibilities too? The narrative is one of injustice, driven by the perception that states have signed on to a system that has left them with large financial exposure to investors. This viewpoint has been reinforced, in the eyes of some, by the influence of big business, and by state losses on sensitive matters of public policy, particularly in matters of health, human rights, and the environment. Perhaps unsurprisingly, there is growing interest in exploring how investment law can be used not simply to protect investors, but also to address the grievances of all parties affected by investments in a more equitable manner. This Article seeks to clarify why, where, and how obligations on investors are emerging in the international dispute resolution system. It maps what “responsibilities” means in ISDS and distinguishes such responsibilities from burdens, obligations, accountability, and Corporate Social Responsibility (“CSR”). In addition, it explores those to whom investor responsibilities are owed, including host states and specially affected groups. Although there are only two parties to each dispute, there are many duty holders and constituencies in investor-state arbitration. The analysis in this Article demonstrates that the most common way of imposing obligations on investors is actually to burden an investor’s ability to access ISDS. Drawing from relational contract theory, this Article argues that relational responsibility and home state responsibility are more valuable lenses through which to think systematically about the responsibilities of non-state actors