In its resolution 30/29, the Human Rights Council invited the Independent Expert on the promotion of a democratic and equitable international order to continue to develop studies on the adverse human rights impact of international investment agreements, bilateral investment treaties and multilateral free trade agreements on the international order.

The present report complements the analysis contained in the Independent Expert’s 2015 report to the Council (A/HRC/30/44 and Corr.1) and his 2015 report to the General Assembly (A/70/285 and Corr.1), addresses the aggravation of the “regulatory chill” generated by investor-State dispute settlements,1 and demonstrates that the newly proposed investment court system suffers from the same fundamental flaws as investor-State dispute settlement. Essentially, the investment court system lacks the fundamental safeguards to ensure an independent legal system in line with the requirements of due process. That analysis was shared by the associations of German and Spanish judges in opinions from 4 February 20162 and 23 May 2016, 3 respectively. Under the investment court system, States would remain vulnerable to the same kind of frivolous and vexatious claims that have characterized the hugely expensive, slow and unpredictable investor-State dispute settlement litigation. Important issues of constitutionality and the rule of law arise when non-State actors exercise “prerogative powers” beyond public control and judicial scrutiny.

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