Professor Subedi delivered Keynote Speech in Singapore
Professor & Barrister Surya P. Subedi, O.B.E., was invited recently to deliver a keynote speech at an international conference on ‘Regulation & Investment Disputes: Asian Perspectives’
The conference was organised by the Centre for Cross-Border Commercial Law in Asia of Singapore Management University in collaboration with Clifford Chance. He delivered his keynoted speech on ‘the Challenge of Reconciling Public Interests with Private Interests in International Investment Arbitration’.
In his speech he examined the tension that has been witnessed in recent years between the law of foreign investment which guarantees investors' protections and legitimate expectations, on one hand, and the need not to unduly restrict the right of host governments to implement their public policy, including the protection of the environment and human rights, and the promotion of social and economic justice within the host country, on the other, is the result of the growing concern about the trend in jurisprudence in this area of law, about the gradual dissatisfaction with the Investor State Dispute Settlement (ISDS) mechanism itself and the gradual rejection of the institution of Bilateral Investment Treaties (BITTs) or other International Investment Agreements (IIAs).
Professor Subedi argued that even if the current regime of investment protection through BITs were to be phased out, international human rights standards will remain applicable. The concepts such as such as the denial of justice under regional and international human rights treaties and the rule of law in its broadest sense are likely to be invoked by foreign investors to sue host governments for compensation for their failings in protecting foreign investors under these human rights standards. Supposing that the International Centre for Settlement of Investment Disputes were to cease to exist, there is nothing to prevent foreign investors for suing host governments before other human rights mechanisms, such as the European Court of Human Rights, or to national courts themselves in the host countries. Individual human rights such as property rights and the right to equality have long been relied upon to seek protection for foreign investors.
He concluded that there was a need to make a contribution to the development of international investment law in a manner which regards this body of law as part of a wider family of public international law that is capable of reconciling competing principles and interests in order to build a fairer international society for all underpinned by the principles of the rule of law.
