Bits and Pieces Social and Environmental Protection in the.pdfVIP

BITS AND PIECES: SOCIAL AND ENVIRONMENTAL PROTECTION IN THE REGULATION OF FOREIGN INVESTMENT * Mary E. Footer I. INTRODUCTION 33 II. INVESTOR PROTECTION VERSUS SOCIAL AND ENVIRONMENTAL PROTECTION 36 A. Trends in First and Second Generation Investment Instruments 37 B. Towards Social and Environmental Protection Through Investment Arbitration 39 C. “Modeling” Social and Environmental Protection Clauses in Third Generation Investment Instruments 42 III. LINKING SOCIAL AND ENVIRONMENTAL JUSTICE TO FOREIGN INVESTMENT: FROM A NOISE TO A SIGNAL 46 A. Non-Disputing Party Participation in NAFTA Investment Arbitration 47 B. Non-Disputing Party Participation in ICSID Arbitration 51 C. Formalizing the Basis for Advancing Social and Environmental Justice Issues in Investment Treaties 55 IV. EMBEDDING INTERNATIONAL CORPORATE SOCIAL RESPONSIBILITY STANDARDS IN BITS : FROM THE PERIPHERY TO THE CORE 57 A. Developments in International Corporate Social Responsibility Standards 58 B. Incorporating Corporate Social Responsibility into Legally Binding BITs 61 V. CONCLUSIONS 63 I. INTRODUCTION Foreign investment is developing a social conscience. There are three developments that herald this movement. The first is the expanding body of case law arising from arbitral tribunals, the jurisdiction of which is based on * Professor of International Economic Law, University of Nottingham School of Law; B.A. (Hons.), University of East Anglia (1976); J.D., Universiteit van de Nederlandse Antillen (1985