The Jurisdiction of Investment Treaty Tribunals over Investors’ Human Rights Claims: The Case against Roussalis v. Romania

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The interactions between international human rights law and investor-State arbitration have attracted much attention in the last two decades. In particular, investors have sought to bolster their position in investor-State arbitration by invoking international human rights law. Some have argued that the broad wording of an arbitration clause could provide a tribunal with jurisdiction to hear their human rights claims, while others have encouraged arbitrators–based on choice of law clauses–to interpret BIT standards in light of the human rights jurisprudence. It is against this backdrop that the claimant in Roussalis v. Romania1 put forward a novel argument. The claimant argued that Article 10 of the Greece-Romania BIT, a preservation of rights provision, could provide arbitrators with jurisdiction over his ECHR claims, as the relevant ECHR provisions were more protective of his investments than the relevant BIT provisions. The arbitrators, while they dismissed the argument as irrelevant on the facts at hand, nevertheless left open the possibility that preservation of rights provisions may under certain circumstances provide the basis for a tribunal’s jurisdiction over investors’ human rights claims. This Note provides a critique of this argument, based on international rules of treaty interpretation and public policy reasons.