Protecting Cultural Heritage in International Investment Law: Tracing the Evolution and Treatment of Cultural Considerations in Recent FTAs and Investor-State Jurisprudence

• Autores: Elsa Sardinha
• Localización: Handbook of International Investment Law and Policy / Julien Chaisse (aut.), Leïla Choukroune (aut.), Sufian Jusoh (aut.), 2021, ISBN 9811336148, págs. 1877-1901
• Idioma: inglés
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• Resumen

  • This comparative exploration of the cultural heritage protections included in the preambles and investment chapters of CETA, CPTPP, and the EU’s FTAs with Singapore and Vietnam reveals a desire by States to remove regulation enacted for legitimate public welfare objectives from the reach of investors’ claims and provide arbitral tribunals with interpretive guidance. These FTAs reflect a concerted effort to ensure that cultural heritage and cultural diversity considerations guide ad hoc arbitral tribunals in their determinations on alleged treaty breaches. With a view to drawing broader conclusions about the future of investment law and disputes involving a cultural heritage element, and in assessing where treaty-drafting practice stands today, the discussion takes a retrospective look at the original NAFTA – one of the first treaties to include provisions aimed at protecting culture and national identity – and its new, but nearly identical, iteration, the USMCA. It also examines a selection of cultural heritage-related investor-State awards to assess whether these cases have adequately dealt with the cultural values at stake, and considers what implications this jurisprudence might have for future disputes situated at the intersection of international investment law and cultural law. While arbitral tribunals might not yet be ready (or have the jurisdiction) to fully engage with cultural heritage law on the same footing with the economic issues which arise in investment treaty disputes, they might prove more likely to acknowledge the cultural heritage-related non-investment obligations externally imposed on the respondent State in determining whether the State has breached the treaty or regarding the appropriate measure of compensation.