Influence and resistance: deciding the role of the 'clean hands' doctrine in the case of Eco Oro Minerals Corp. v. Colombia - Sección 2. Derecho Internacional Económico y de la Inversión Extranjera - Derecho internacional público, derecho internacional de la inversión extranjera. Reflexiones y diálogos - Libros y Revistas - VLEX 829680233

Influence and resistance: deciding the role of the 'clean hands' doctrine in the case of Eco Oro Minerals Corp. v. Colombia

AutorRebecca Pendleton
Páginas179-201
179
Inuence and resistance: deciding the role
of the “clean hands” doctrine in the case
of Eco Oro Minerals Corp. v. Colombia
Rebecca Pendleton*
Introduction
e explosive growth of investment arbitrations in recent years – 254
investment disputes were listed as pending at World Bank’s International
Centre for Settlement of Investment Disputes () alone in early April
20181 – has attracted the attention of the international community due
to the perception of large-scale foreign investment periodically inferring
with other essential obligations that States have under international hu-
man rights treaties or, in many cases, with States’ domestic laws that have
incorporated these treaties.
One proposed method of protecting these essential obligations is
through the use of the “clean hands” doctrine. is implicit legality require-
ment, rooted in equitable principles, means that no party shall be heard
when invoking its own wrong.2 e doctrine has more often arisen as a
* Universidad Externado de Colombia, rebecca.pendleton@uexternado.edu.co.
1 “World Bank, International Centre for Settlement of Investment Disputes, Pending Cases”.
https://icsid.worldbank.org/en/pages/cases/pendingCases.aspx?status=p. (accessed April 12, 2018).
2 Enonchong, Nelson, “Eects of Illegality: A Comparative Study in French and English
La w,” e International and Comparative Law Quarterly. Cambridge University Press on behalf of
the British Institute of International and Comparative Law, 44, No. 1 (January 1995), pp. 196-213
Derecho internacional público, derecho internacional de la inversión extranjera
180
bar to jurisdiction, rather than an issue of admissibility, for the denial of
illegal investments.3 It has been proposed that it could be used by future
tribunals to nd inadmissible claims involving human rights and environ-
mental violations committed by an investor against citizens of the host
State in the context of its investment.4 I believe this will certainly be the
case given the increased use of “new generation investment agreements,
which incorporate human rights and environmental protection language
into the text of the agreement.
Human Rights and the rise in “new generation
investment agreements
Within the past 15 years changes in the global political and economic
climate, including food security, nancial and environmental crises, have
led to a new generation of foreign investment policies that “place inclusive
growth and sustainable development at the heart of eorts to attract and
benet from investment.”5 ese “new generation” investment agreements
are more appropriately aligned with 21st century concerns and priorities
and thus tend to include clauses on human rights and environmental
protection,6 thus defeating the assertion that international investment
law and other normative orders, such as human rights, are isolated legal
at 202. It has also been understood though Latin maxims as ex delicto non orituractio (‘an unlawful
act cannot serve as a basis of an action at law’) and ex turpicausa non oritur (‘an action cannot arise
from a dishonorable cause’).
3 See generally, Moloo, Rahim, “A Comment on the Clean Hands Doctrine in International
La w,” Transnational Dispute Management, 8, No. 1 (2011); Schill, Stephan W., “Illegal Investments
in Investment Treaty Arbitration,” lpict 11, No. 2 (2012): 228.
4 Dumberry, Patrick and Dumas-Aubin, Gabrielle, “e Doctrine of ‘Clean Hands’ and
the of Claims by Investors Breaching International Human Rights Law,” Transnational Dispute
Management Special Issue: Aligning Human Rights and Investment Protection, 10, No. 1 (January,
2013), 7.
5 “Towards a New Generation of International Investment Policies:  ’s Fresh Approach
to Multilateral Investment Policy-Making.” United Nations Conference on Trade and Develo-
pment, 2013. http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d6_en.pdf (accessed
April 12, 2018).
6 See generally, Spears, Suzanne A., “e Quest for Policy Space in a New Generation of
International Investment Agreements,” Journal of International Economic Law 13, No. 4 (2010):
1037-1075.

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