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Hirano, Miharu; Hamamoto, Shotaro --- "Is investment arbitration inimical to the human right to water? The re-examination of arbitral decisions on water services" [2017] ELECD 328; in Chaisse, Julien (ed), "Charting the Water Regulatory Future" (Edward Elgar Publishing, 2017) 145

Book Title: Charting the Water Regulatory Future

Editor(s): Chaisse, Julien

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781785366710

Section: Chapter 8

Section Title: Is investment arbitration inimical to the human right to water? The re-examination of arbitral decisions on water services

Author(s): Hirano, Miharu; Hamamoto, Shotaro

Number of pages: 22

Abstract/Description:

In June 2015, a group of UN experts, including the Special Rapporteur on the human right to safe drinking water and sanitation, voiced concerns over the adverse impact of investment agreements on the human rights. The issued statement draws attention to ‘the potential detrimental impact these treaties and agreements may have on the enjoyment of human rights’, including the human right to water. This statement goes one step further than the 2007 Report of the High Commissioner for Human Rights (UNHCHR) on equitable access to safe drinking water, which had simply noted that further analysis was needed in this field. The 2015 statement was quoted by a parliamentary member in the Japanese Diet to criticise Japan’s policy on investment treaties and the Minister for Foreign Affairs replied that Japan would design and negotiate investment treaties so that no detrimental impact would be exerted upon the enjoyment of human rights. In fact, urban water utility has now become rather a common sector in the list of publicly available investment arbitration proceedings. As of January 2016, 13 disputes have been brought to investment arbitration, all under the ICSID Convention;so far seven of them have reached merits,four have been discontinuedand two are still pending. Among them, nine cases were brought against Argentina, but other countries like Algeria, Bolivia, Estonia and Tanzania also became respondents. A major privatisation project in Jakarta faces ongoing controversies,and a last resort to seek arbitration is open for investors.