Koen De Feyter Memorial Lecture Series

Guest speaker: Daniel Matthew (National Law University-Delhi)

26 February 2025, 5pm-7pm

Room SC 002

Foreign investment is often touted to carry the potential to lift underdeveloped or stagnant economies from the mire by augmenting the state’s ability to effectively utilise its natural resources. It does so by enabling transfer of scarce resources such as technology, technical know-how, skilled personals, augmenting skill sets of local population, enhancing local production capacities, improving living standards through employment generation and wage enhancements, etc. In short, the argument goes that injection of foreign investment is likely to generate enormous positive externalities, resulting in both short- and long-term benefits for the host state. This has remained the standard approach for almost all major international financial institutions, which strongly advocated for international protection of foreign investments.

Such an approach was also in part responsible in international investment regulatory framework moving away from a completely sovereignty focussed approach to seeking a global consensus on international protection to foreign investments. These protection and guarantees were articulated in various international investment agreements (IIAs), more specifically bilateral investment treaties (BITs). A crucial part of this standardisation was also the push for the investor to have a voice in the manner in which foreign investment disputes were resolved. As a result, IIAs included specific investor state dispute resolution (ISDS) clauses, which marked something of an innovation on many fronts. First, it lent voice to a nascent understanding that had begun to emerge by then, namely that even non-state actors could be subject of international law; second, it broke the understanding that only states could engage other states for harm caused to its nationals; and third, the understanding that international disputes adjudication necessarily required public forums was done away with.

A particular manifestation of ISDS, namely investment arbitration (or IA), imbibed all the three notions. Investment arbitration, perhaps for the first time, permitted foreign investors to directly raise claims against the host state, i.e. without having to depend on their home state, as was necessary under diplomatic protection. This vastly empowered the foreign investor, as it enabled the foreign investor to be directly raise a claim grounded in international law against the host state before an international arbitration tribunal comprising individuals who were present in their individual capacities and not as representatives of any State.

As a result, ISDS system when combined with expedited enforcement mechanisms, at least on paper, balanced the scales that had earlier been predominantly in favour of states, in that the States faced very few fritters in how they treated aliens and their property. Expedited enforcement in case of investment arbitration, for instance, when done under international agreements such as Recognition and Enforcement of Foreign Arbitral Awards 1957 (New York Convention or NYC) meant minimum engagement on local law or judiciary, and therefore minimum delay in investor receiving compensation and or damages for the harm caused to it by actions of the host state.

That said, IA was not without its set of issues. IA clauses carried blanket consent of contracting states as regards any investment or investment related disputes raised by the foreign investor. This led to what is now referred to as arbitration without privity. As a result, the precise scope of the dispute presented to the arbitral tribunal for adjudication, and therefore the contours of the arbitral tribunal’s jurisdiction, was decided by the scope of the consent of the investor. This is in line with the standard understandings of arbitration, namely that because arbitral tribunal is a private creation, unlike a state-based court system which derives its jurisdiction from laws of the land, jurisdiction of the arbitral tribunal is predominantly contingent on the agreement of the parties. An arbitral tribunal can only exercise that jurisdiction that parties choose to invest in it. While this might seem straight forward and even desirable, the practical implications of such an arrangement were rather far-reaching and problematic.

A specific concern pertained to the question - what all issues could the arbitral tribunal adjudicate upon, especially when such concerns emerged from actions of foreign investor, the manner in which the investment was worked, or the effect of working of the investment on the local population of the host state. Considering that it was the foreign investor that was to finally tailor the specifics of the arbitral tribunal’s jurisdiction, such disputes were unlikely to feature for adjudication. This de facto authority in the hands of investors, especially in instances when foreign investors actions had a deleterious impact on host state population meant that the arbitral tribunal only ever obtained a one-sided view of the dispute and adjudicated the same without considering relevant important counter issues. This was particularly problematic when human rights concerns were involved or attempt was made by the host state to utilise human rights-based argumentation. In other words, even in instances where state action was taken in response to or to address negative fallout of foreign investments on human rights, the arbitral tribunal could only look at the harm to the foreign investor resulting from the state action without taking into consideration, let alone adjudicating, on the negative impact of foreign investor/investments on human rights of the local population.

The response of arbitral tribunals to attempts to introduce human rights within international investment adjudication has been widely divergent, ranging from outright rejection to cautious enquiry to emphatic acknowledgement. Yet the overall approach has remained ad hoc and piecemeal, presenting a fertile ground to pose certain interesting queries: (a) whether normative impediments exist in reading together investment arbitration and human rights; and (b) whether such utilisation is actually happening. An enquiry into this interface is therefore necessary to chart the evolution of international law at the intersection of international investment law and international human rights law. Further, no enquiry mapping the potential or actual interaction of investment arbitration and human rights has ever been done with an India specific focus, which presents a substantial gap considering India over the last decade or so has been at the receiving end of increasing number of investment claims.

Exploring the intersection of international investment arbitration and human rights, this talk delves into how arbitral tribunals engage with human rights principles, the challenges hindering their broader integration, and insights from India’s ISDS cases.

Guest Speaker: Carol Chi Ngang (National University of Lesotho)

13 March 2025, 5pm-7pm

Room: S.C. 002 

Abstract  

The right to development has had a legacy of deeply polarised controversies. Those controversies are thought to have been put to rest especially, following codification of right in the International Covenant on the Right to Development (draft), which is pending adoption by the UN General Assembly and potential ratification and entry into force. Interestingly, remnants of the controversies still linger. It caught my attention that two prominent contemporary scholars on the subject, who are more so, members of the UN Expert Mechanism on the Right to Development, share conflicting views on the question of state’s right to development. While Bonny Ibhawoh (current member) argues that states ought to be recognised as holders of the right to development, Koen de Feyter (former member), contends that the idea of state’s right to development cannot be supported.  

I am inclined to submit that the disagreement harbours on and goes to the very depth of the reasoning that birthed the claim on the right to development, clarity on which has remained elusive. In this paper, I delve into the enquiry regarding state’s entitlement to assert the right to development, importantly because its realisation pivots on settling the controversy. Ancillary to this, is the question whether the right to development would diminish or its realisation threatened sans recognition of states as legitimate holders of such a right? An accurate response to the underlining questions oblige a deep-rooted exploration of the post-decolonisation context through which the right to development has evolved, a closer scrutiny of its extraterritorial dimensions and a critical examination of its conceptual nature not just as a human rights (like other human rights) but majorly, as a global development paradigm.      

Short Bio – Prof Carol Chi Ngang  

Carol Chi Ngang (LLD, LLM, IDHA, SUSTLAW, LLB) is an Associate Professor of laws in the Department of Public Law, National University of Lesotho, Research Fellow at the Free State Centre for Human Rights, University of the Free State and a Guest Lecturer at the Centre for Human Rights, University of Pretoria. He is the UNDP Human Rights Chair for Lesotho and Category C2-rated Researcher awarded by the National Research Foundation (NRF) of South Africa. He has been a visiting researcher at the Van Vollenhoven Institute, Leiden University in 2022; Law and Development Research Group, University of Antwerp in 2016 and Cegla Centre for Interdisciplinary Research in Law, University of Tel-Aviv in 2015. His research interests combine human rights and development with a niche on the right to development. He has published extensively including books, chapters, journal articles and policy briefs. He is a member of the Law and Society Association (LSA), Law and Development Research Network (LDRN), Associate Editor of the Lesotho Law Journal (LLJ) and Turf Law Journal (TLJ) and Advisory Board Member of the International Journal of Ethiopia Legal Studies (IJELS). He has previously worked in the NGO sector in Cameroon and South Africa. 

Guest speaker: Liliana Lizarazo Rodriguez (Brussels School of Governance)

26 March 2025, 5pm-7pm

Koen De Feyter was an exceptional academic. In legal scholarship, Koen was the forerunner of an area of law that was unknown in the traditional curricula of law schools in Belgium. Its development has always been more closely linked to economics and, more recently, to the social sciences. However, through his field of expertise, international law, Koen gradually managed to put the problems of global inequality and development and the corresponding responsibilities of high-income countries on the agenda of legal education and research. In fact, in Antwerp, he was the pioneer of the LLM in English and the modules on sustainability and methodology, which are shaping the scope and concepts of contemporary legal approaches. Koen also managed to link up with other Flemish and foreign universities to create networks interested in these complex issues. This lecture, based on his book published in 2000, will show how this topic has developed and localised over the last 25 years. From purely international treaty issues to realities where these dynamics are becoming more complex. It is a small tribute to his legacy in an area where I was fortunate to work with him. 

The Speaker: 

Liliana Lizarazo-Rodriguez is a Research Professor in Sustainable Development Law at the Brussels School of Governance, and at the LLM in International and European Law programmes. She is an expert in the areas of corporate accountability, law and sustainable development, judicial adjudication and access to justice. At the BSoG, she is the principal investigator of the project CURIAE VIRIDES, funded by the European Research Council (ERC Str. Grant 909496) and the Co-supervisor of the Marie Sklodowska-Curie Postdoctoral fellowship Mother Earth, among other projects. 

Liliana obtained her PhD at the Department of Interdisciplinary Study of Law, Private Law and Business Law of the University of Ghent. 

For more information, visit VUB publications platform. 

References: 

Feyter, K. (2001). World development law: sharing responsibility for development. Intersentia nv. 

De Feyter, K., Türkelli, G. E., & De Moerloose, S. (2021). Future of Law and Development Research: An Introduction to the Encyclopedia of Law and Development. In Encyclopedia of Law and Development (pp. 1-3). Edward Elgar Publishing. (On Request) 

Lizarazo-Rodríguez, L. (2021). Approaches to law and development. In Encyclopedia of law and development (pp. 11-15). Edward Elgar Publishing. (On request) 

Lizarazo Rodriguez, L. (2017). Mapping law & development. Indonesian journal of international & comparative law.-Cianjur, Indonesia, 2014, currens, 4(4), 761-895. https://heinonline.org/HOL/P?h=hein.journals/indjicl4&i=805