Investor obligations could also be strengthened by provisions in the investors’ home states to ensure that their legal systems and rules allow for, or do not prevent or unduly restrict, domestic court actions against investors for damages resulting from their acts or decisions in the host state.
Option 1:Require the home state to ensure access to justice in its courts for damages resulting from acts of the investor in the host state
This would include restricting the use of procedural or jurisdictional constraints as seen in the forum non conveniens23 and similar rules. This would clear away some procedural obstacles and allow victims in the host state to sue in the home state for the harmful impacts of foreign investment.
Examples
“Investors and Investments shall be subject to civil actions for liability in the judicial process of their Home State for the acts, decisions or omissions made in the Home State in relation to the investment where such acts, decisions or omissions lead to significant damage, personal injuries or loss of life in the Host State.” (SADC Model BIT, Article 17.1)
How Commonly Used
Examples
“Investors shall be subject to civil actions for liability in the judicial process of their home state for the acts or decisions made in relation to the investment where such acts or decisions lead to significant damage, personal injuries or loss of life in the host state.” Morocco-Nigeria Investment Promotion and Protection Agreement, Article 20)
How Commonly Used
Option 2:Require the home state to enact domestic legislation to subject investors and their investments to judicial proceedings of the home state for environmental and other harm caused by their operations in the host state
This provides affirmative rights for victims of environmental and other harms to access home state courts.
Examples
“Home States shall ensure that their legal systems and rules allow for, or do not prevent or unduly restrict, the bringing of court actions on their merits before domestic courts relating to the civil liability of Investors and Investments for damages resulting from alleged acts, decisions or omissions made by Investors in relation to their Investments in the territory of the Host State.” (SADC Model BIT, Article 17.2)
How Commonly Used
Option 3:Require investors and investments to waive, at the time an arbitration claim is filed, any right to claim forum non conveniens or a similar jurisdictional bar, and link such a waiver to the benefit investors and investors may enjoy from the agreement
This option also intends to clear away some procedural obstacles preventing victims from accessing home state courts.
Examples
Although there are no known examples in investment treaties, similar provisions with same effect can be commonly seen in commercial contracts between private parties. For example, texts below, as inspired by several commercial contracts, attempt to incorporate such a jurisdictional waiver in an investment agreement:
“Courts in the Home States or Host States shall have non-exclusive jurisdiction to hear and determine any claims or disputes between an Investor or its Investment and a Host State pursuant to this Agreement. The disputing parties expressly submit and consent in advance to such jurisdiction in any action or suit commenced in any such court, and hereby waives any objection that may be based upon lack of personal jurisdiction, improper venue or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such court.”
How Commonly Used
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Forum non conveniens is a principal of law that allows courts to decline to hear a case, arguing that some other forum has more appropriate jurisdiction. It has been used to decline to hear complaints from foreign persons over alleged damages done by domestic firms in their overseas operations.