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From the doorstep to invisibility
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Balancing Rights and Duties of Hosts and Guests under International Law: The Case Study of Investment Law

L’équilibre des droits et devoirs entre hôtes dans le cadre du droit international : étude de cas du droit des investissements
Kristen E. Boon

Résumés

Dans le droit international, le concept d’« État hôte » est polysémique. Les États hôtes sont des États où les institutions internationales ont leur siège ; ils reçoivent les aides humanitaires et les forces de maintien de la paix. Les États hôtes sont aussi bénéficiaires des investissements étrangers. Par opposition à l’État d’origine, où les entreprises, l’institution concernée ou les troupes sont situées de manière permanente, l’État hôte a une relation temporaire avec l’institution concernée. Les traités, contrats et autres éléments légaux en lien avec les états hôtes régulent les droits, devoirs, statuts, privilèges et parfois même l’immunité des institutions à l’intérieur de leurs territoires. Ce chapitre propose de montrer la dualité du terme et le déséquilibre autour du concept d’État hôte en le reliant plus largement au débat autour de la notion d’hospitalité, débat particulièrement pertinent suite aux diverses fermetures de frontières dues à la pandémie CoVid19. En particulier, je fais remonter la longue histoire de ce concept d’hospitalité et d’hôte, des anciens Grecs à Kant et plus récemment Derrida et Arendt. J’aborde les droits et devoirs tels que les comprennent les États hôtes et démontre comment la fragmentation de l’État nation a compliqué le travail des Nations Unies lorsqu’il s’agit de traiter avec des acteurs non-étatiques tels que les agents terroristes, mais aussi le travail privé d’investisseurs.

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  • 1 Noting that HQ agreements for international organizations “headquarters agreements” or “seat agreem (...)
  • 2 Defining home state as the state in which a parent company is registered or domiciled (Davitti, 202 (...)

1International law is replete with references to and images of the host state. For example, the United States and Switzerland are host states in which the United Nations is headquartered1 (Reinisch, 2016). Countries in conflict that receive peacekeeping missions are known as host states. Cross-border investments are protected by investment treaties, and the recipient country in which the investment is located is known as the host state. The Morocco-Nigeria BIT defines host states as “the party in whose territory the investment is located” (UNCTAD.ORG, 2016). Migrants transit from their homes to host states to flee conflict or to search for better opportunities. Measures to contain the Covid-19 pandemic have raised further legal issues, including border closures and health related restrictions applicable to human hosts as well as host states (Fidler, 2020). As opposed to the home state2, where individuals, businesses, or troops are presumed to be permanently located, the host states’ relationships with the entity in question is typically temporary and consensual (Sebastián & Gorur, 2018).

  • 3 According to the Online Etymology Dictionary, “hostility (n.): early 15c., ‘hostile action,’ from M (...)
  • 4 Jacques Derrida famously argued that the notion of hospitality retains the trace of hostility, whil (...)

2The concept of the “host”, however, has a complicated etymology. Its origins are connected to both the guest and enemy (Online Etymology Dictionary)3. Host and hostility share a common root, hostis, which is tied to food and feeding others (Online Etymology Dictionary; Minkkinen, 2007: 53). Philosophers have long explored the inherent duality in the host as both guest and enemy (Derrida, 2000; Giannacopoulus, 2014; Tataryn, 2014). Philosophers have long explored the inherent duality in the host as both guest and enemy (Dufourmantelle & Derrida, 2000; see also Giannacopoulus, 2014: 163–165; see also Tataryn, 2015: 184–185)4. In ancient cultures, these encounters played out in law through representations of agency and victimhood (Isayev, 2017: 78). It is with tragic irony that these dualities have continued: the acronym for the UN Mission in Kosovo—UNMIK—became the basis for a new slogan in Kosovo Unmik = anmik (enemy, in Albanian), due to the casualties of war and the hostility with which the local population viewed the UN territorial administration (Rama, 2019: 291).

  • 5 It should be noted, however that some host states to UN Peacekeeping Missions are sophisticated and (...)
  • 6 In recent decades, the primary objective of many peacekeeping missions has become the protection of (...)
  • 7 Also note that host states are also often responsible for failing to take up the claims of their ci (...)

3The purpose of this essay is to explore the inherent tensions underlying the concept of the “host” in law. The ubiquity of the “host state” with its public and diffuse, rather than private dimensions of hospitality, confront a number of realities in the international legal system. First is the legal fiction of sovereign equality between states. The frequent power imbalances in the international system, on both political and economic planes, creates an uneven playing field between states generally, and between home and host states (Roberts, 2017: 45). The legal fiction of sovereign equality between host and home states, therefore, often confronts reality. In the context of peacekeeping, host states in conflict situations receive peacekeeping or peace enforcement missions precisely because they are politically or economically stable5. These power imbalances can spill over to conflicts in goals between peacekeepers who have a mandate to protect civilians, and those of the host state, which may prefer to control civilians. Another area in which the topic is pertinent is in the international investment field, where developing countries and emerging economies may be particularly interested in attracting investors in order to further their economic development. While investors may bring an infusion of cash, they do not necessarily advance domestic goals nor support corporate social responsibility, marking further tension6 (Labuda, 2020: 4–5). As a result, in the investment law regime, there is growing interest in “leveling the playing field” and exploring how investment law can be used not simply to protect investors, but also to address the grievances of all parties. As Frédéric Mégret (2019: 68) has noted in the context of UN operations, the host state, as the territorial state, has the primary responsibility to protect its inhabitants, but there is a track record of hosts “surrendering” the rights of those whom they are meant to protect. Indeed, hosts have commonly been criticized as lacking agency (Jeanniard du Dot & Mianowski, 2023). A tragic recent example is Haiti, where cholera was introduced into a main tributary by black water from a compound housing UN Peacekeepers (Bode, 2016). Although a class action was initiated by a domestic NGO in the US, Haiti itself chose not to bring a case within the UN system, and an administrative action brought domestically was eventually dismissed (Megret, 2019: 68). The imbalance between locals and international “saviors” is perpetuated and the host state has been viewed as “lethargic” (Mégret, 2018)7.

  • 8 Proactive and reactive responses to pregnancies resulting from sexual exploitation and abuse: An ec (...)

4Similarities are apparent with regards to acts of sexual exploitation and abuse (SEA) by peacekeepers. During peacekeeping missions, it is not uncommon for relations to occur between locals of the host state and the peacekeepers. There have been increasing reports (although not necessarily instances) of pregnancies or abuse. However, because there are power differentials between peacekeepers and the host community, victims of unconsensual have few incentives to report these acts of SEA8. Moreover, home states of the peacekeepers have been disinclined to prosecute these acts of violence, over which they had jurisdiction, further cementing victimization (Morenne, 2017). Saugata Bhaduri (Jeanniard du Dot & Mianowski, 2020) has observed that one of the key aspects of colonialism was the receipt of colonial powers by “host” or colonized states which did not assert their agency. Legacies of colonialism and power continue to run through the concept, image and reality of the host state today.

  • 9 In recent decades the primary objective of many peacekeeping missions has become the protection of (...)

5Current developments in the field of international investment law, however, present a counterpoint to this narrative. Over the past decade, there has been a great deal of movement with regards to the rights and duties of host states in international investment law, and there are current, multi-level reform efforts to balance duties of the host with obligations of the guest. Here, the guest is the “investor”—typically a company or a wealthy individuawhose eligibility for protection is defined by international treaties between the home and host state (OECD, 2008). While investors may bring an infusion of cash, they do not necessarily advance domestic goals nor support corporate social responsibility. They are not always wanted, creating tension between the home and host states (Labuda, 2020)9. In the investment law regime, therefore, there is growing interest in “leveling the playing field” and exploring how investment law can be used not simply to protect investors, but also to address the grievances of all parties. Thus some host states in the investment law context are returning to re-emphasize the ideas that guests should be temporary and based on the host’s consent.

6This contribution maps these trends of host activism in the context of investment law and identifies changing roles and responsibilities of host states in the context of investment. I begin by examining the role of “hosts” in private law. I then discuss the public and more diffuse role of hospitality as a matter of international law, noting some of the ways in which host states have burdened the right of access of investors to dispute resolution mechanisms as a way of imposing obligations on guests. Although the focus here is on investment, the conclusions are relevant to many areas of law in which host states play a role, including peacekeeping, cyber security, migration and immunities. I argue that host states are starting to reassert their right to regulate. Buttressed by business and human rights movement support for intergenerational equity and environmentalism, host states are starting to play a different role in the international system.

1. The Host in Domestic Law

  • 10 Today, this protection is extended to foreign states through the protections offered by domestic la (...)

7Like a false friend, hostis means both to eat or destroy and also to be a stranger or foreigner to one’s country (Lewis & Short, 1879). Among the Romans, it came to mean enemy (Phillipson, 1911: 215). Interestingly, in the Odyssey, ignorance of duties of hospitality towards strangers marked “lawlessness” in a host community (Zanghellini, 2016: 213). Hospitality between a host and stranger was considered a sacred bond (Phillipson, 1911: 131) and there was a duty to treat a stranger as one’s own brother (by offering shelter, food, and lodging for example) (Phillipson, 1911: 131–132). As such, the rights and duties of “hosts” have been established in law since ancient times. Although the concept of the “host state” is a product of the Westphalian order, one can trace related duties back to the ancient world with regards to the rules applicable to visiting envoys (a breach of hospitality was considered a form of treason) (Bederman, 1996: 14; Phillipson, 1911: 131) and the immunities accorded to visiting ambassadors (Bederman, 1996: 16)10.

  • 11 It also arises with regards to website providers and banking. Under the Communications Decency Act, (...)

8In domestic law, the concept of the “host” arises in a number of disparate contexts but is most developed for social hosts11. The responsibilities and duties of care that are accorded to hosts in those varied contexts are tied to jurisdiction and particular legal traditions, but notably, many still see the host as providing valuable societal functions, while also providing them with immunity, based on the presumption that hosting is temporary and would be discouraged if normal recourse to suit were available. As a result, under domestic law, people or entities in the role of hosts are offered protection from suit.

  • 12 Liquor Liability Law § 12.06. Courts will often look to whether an organization holds a liquor lice (...)
  • 13 Sparlin (1986) quoting the dissenting opinion of Garibaldi J. in Kelly v Gwinnell, 96 NJ 538 at 568 (...)

9The most developed references to “hosts” in common law regimes are to social hosts, defined as a private individual “who [hosts] a party for purely social purposes at his or her residence that was attended by friends and acquaintances12. Distinguished from a commercial host, which operates in a regulated environment, social hosts had historically, no liability for injuries caused by alcohol under the common law. This was justified on the basis that the proximate cause of the injury was the alcohol, not the host’s actions, and that individuals must be responsible for their own acts13 (Bernat, 2006: 981, 983; Sparlin, 1986: 583). However, given the tragedies associated with drinking and driving accidents, some jurisdictions have now enacted statutes, such as Liquor Liability Acts, which establish a duty of care by hosts towards their guests.

  • 14 Liquor Liability Law § 12.06 (noting that some cases have established a duty of care by hosts towar (...)
  • 15 Liquor Liability Law § 12.06.

10It is significant, however, that the majority of jurisdictions still adhere to the common law rule of social host immunity, whereby social hosts cannot be sued in court14. Thus while the law may recognize how certain responsibilities apply to hosts, it limits or removes fora in which they can be held responsible. The justification for the decisions not to hold social hosts responsible has often been to impose liability on who was drinking (Slepchuk, 2011: 933; Sparlin, 1986: 614; French, Kaput & Wildman 1985: 1062)15. Moreover, courts have distinguished between social hosts and commercial owners (who do not have immunity) because of the inability of the social host to spread the cost of liability through insurance.

2. Hosts in Investment Law

  • 16 See Restatement (Third) of Foreign Relations Law of the United States, Part IV. Jurisdiction and Ju (...)

11In the international sphere, a recurrent image of the host is the “host state”. The state, as a subject and object of international law, is not simply a membership organization, but an entity that exercises effective control, presumably long-standing, over a geographical domain (Stanford Encyclopedia, 2020). Effective control, in turn, is the basis of the territorial principle in law which provides that a country may regulate both civil and criminal matters within its sovereign borders16. The host state, therefore, incurs certain rights, such as the right to regulate, and duties, such as the duty not to interfere with an investor’s investment, by law, as a result of its control over a particular geographical territory.

12Investments typically involve a tripartite relationship: the host state is where the investment takes place, the home state is where the investor/company is incorporated (which determines nationality), and the investor itself. The legal framework is defined by investment treaties, human rights treaties, and other legally binding norms that the home and host state have entered into by consent (Radi, 2011: 1007, citing Parra, 2007: 3). It is estimated that there are some 3000 treaties with investment provisions in effect today (APEC, 2020). In addition to the trifecta, there are other relationships that come into play in long term investments, particularly with regards to indigenous communities, other specially affected communities, and the body politic (Gurmendi, 2019). The diagram below depicts these relationships (Boon, 2022: 261).

13One thing that is unique to the Investor-State Dispute System (ISDS) is that it permits investors to sue host states directly when their investments are injured. A key aspect of ISDS, therefore, is that it is deliberately situated outside the jurisdictions of both the home and host state. As Christian Schreuer (2007: 345) writes:

A beneficial side effect of Investor-State arbitration is the impact on the relations between the States concerned. The host State and the investor’s home State are disencumbered from the strains arising from investment disputes. These disputes are transferred from the political bilateral arena to a judicial forum especially charged with the settlement of mixed investor-State disputes. The dispute settlement process is depoliticized and subjected to objective legal criteria.

14Nonetheless, the applicable law is determined by consent of the home and host states according to treaties that the states sign on to, procedural rules of various decision-making bodies, and the domestic laws of both the home and host state.

15The right of investors to sue under investment treaties has been described as unilateral: “The treaty commitments of the host state towards the investor are unilateral, and […] the agreement to arbitrate, though it incorporates by reference the jurisdictional requirements of the [BIT] does not incorporate its substantive power nor does it make them applicably bilaterally” (Crawford, 2008: 351). In exchange for their investment, investors are given the right to sue host states directly on the basis of defined treaty rights. Thus, it is not surprising that at the level of international law, there were historically few rights accorded to host states. Instead, host states were accorded duties, in order to attract investors and their funds. These include (Sidley.com):

16- The duty not to interfere with investments, including that foreign companies are entitled to be treated as favorably as their local competitors and other foreign companies. Foreign investors are entitled to the best national treatment or most favored nation (MFN) treatment, subject only to certain limitations.
- Limitations on the expropriation of investments which entitle foreign investors to seek compensation. Expropriation can occur only in accordance with international law standards—that is, for a public purpose, in a nondiscriminatory manner, under due process of law, and accompanied by payment of prompt, adequate, and effective compensation.
- The duty to guarantee treatment for investors in accordance with international law. Host countries typically promise “fair and equitable treatment” and “full protection and security” for investments and promise not to engage in “arbitrary” or “discriminatory” decision making.
- The duty to ensure foreign investors can transfer funds into and out of the host country without delay using a market rate of exchange.
- Host governments cannot require foreign investors to adopt inefficient and trade distorting practices. For example, performance requirements, such as local content or export quotas, are often prohibited.

17Interestingly, immunity issues are much more diffuse as regards host states (despite their prevalence in other legal contexts involving hosts), and typically arise at the stage of enforcement (Bjorklund, 2011).

3. Rethinking the Rights and Duties of Guests and Hosts

18When the investor / state dispute settlement system was set up, the traditional view was that the host state (often an economically developing state) was a duty bearer towards the “guest”—the investor—often from an industrialized country. Very little was expected from the guest in return for its investment. The opportunities associated with attracting foreign capital were considered sufficient. In the years since the ISDS system was created, the number of treaties with investment provisions and awards rendered have proliferated and ISDS has come under intense criticism as its impacts have become more apparent. High profile awards rendered against states attempting to regulate in the areas of health and the environment have been particularly controversial, resulting in “regulatory chill” within host states (citizen.org). Host states have also been concerned about the lack of predictability and consistency in awards rendered by the decentralized system of arbitral tribunals.

19Today, there is a high demand for change. Various factors are fueling this movement, including the proliferation of south–south investment, which is debunking the perception that investors come primarily from developed home states (economist.com, 2018). In addition, there is rising influence of the business and human rights movement, which has led to influential new thinking on how investors, can and should promote human rights in their operations for this generation and the next. Finally, host states are no longer willing to be passive recipients of investments from abroad. Rather, they increasingly expect certain behaviors or practices from investors in exchange for the right to sue in international fora. These narratives are leading to important architectural changes in the ISDS system, in which investors are being required to take on more duties in exchange for the right to sue.

20The section that follows charts some of the developments in the ISDS field that seek to rebalance rights and duties of hosts and guests, and focuses in particular on three areas: changes to treaties and international legal regulation; changes in domestic laws of the home and host state; and procedural changes in institutions that are adjudicating disputes. On the other hand, it is important to note that influential critics argue the current set of reforms may still carry forward some of the unequal rules of international investment law. As James Gatthi (2021: 2) writes, there may even be a perverse structure built into international law:

[…] the rights international investment law confers on investors effectively undermine domestic regulatory choices. This has been a central issue for host countries since the Calvo era, when Latin American States argued that domestic and foreign investors should have similar rights and their disputes should be determined under domestic law.

21Gatthi (2021: 17) citing Lipson (1985) goes on to note that investor (guest) exceptionalism has deep roots:

Lipson shows how investors successfully established the foundational rule of international law that it is insufficient to protect alien, or foreign investors by applying a national treatment standard (i.e. that foreign investor rights could not be protected through the domestic law of a host state since this would not afford sufficient protection). He traces how investors prevailed in creating the rule that their rights had to be protected by international law. Host States, by contrast, unsuccessfully argued that aliens were not entitled to a higher standard of justice than a national”, as a matter of international law. That rule guaranteeing the freedom and security of the rights of investors became the foundation of the international property rules upon which international investment law and the ISDS system is founded.

A. Changes in Treaty Provisions

  • 17 “Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the Europea (...)
  • 18 Similarly, the Morocco-Nigeria BIT (UNCTAD.ORG, 2016), signed but not yet in force, will require in (...)

22One significant area of change is i the substantive provisions of treaties themselves. States—both home and host—have been the drivers in renegotiating treaties, such as NAFTA, or entering into new treaties or model Bilateral Investment Treaties (BITs), in order to redefine the rules of the game. Host (and home states) have moved out of their “lethargic” state, into active regulators through new treaties that attempt to safeguard the interests of host states (Ranjan et al., 2018) and, in return, require investors to uphold certain norms, such as human rights (UNCTAD.ORG, 2016). For example, the model Indian BIT provides for real and substantial business operations, requires a substantial and long-term commitment of capital in host states, making a substantial contribution to the development of host states, and carrying out operations in accordance with host state law (mygov.in). The new European Union-Canada Comprehensive Economic and Trade Agreement (CETA) reaffirms the rights of the parties to regulate within their own territory to achieve legitimate policy objectives17. Similarly, the Morocco-Nigeria links this right to longer term goals of sustainable development: “the host state has the right to take regulatory or other measures to ensure that development in its territory is consistent with the goals and principles of sustainable development and other social and economic policy objectives” (UNCTAD.ORG, 2016). Also along these lines, the 2019 Netherlands Model BIT provides in Article 7(1) that “[i]nvestors and their investments shall comply with domestic laws and regulations of the host state, including laws and regulations on human rights, environmental protection and labor laws”18 (UNCTAD.ORG, 2019).

23In tandem, newly negotiated treaties with investment provisions are deliberately limiting access to ISDS dispute resolution mechanisms through tighter definitions of certain key terms such as “investor” and “investment”. Importantly, the principle behind these narrower definitions of investment is to balance the private rights of the investor with the public power of the host state.

24For example, there are three main models of the investment definition, each of which impacts access: the “open-ended” asset-based definition characteristic of old-generation treaties, which defines an investment as “every kind of asset” and gives tribunals great discretion to determine what constitutes an investment; the “closed” asset-based model, which often lists the “commitment of capital or other resources” alongside other characteristics, such as expectation of profit and assumption of risk, and the “enterprise-based” definition, which includes only instruments of an enterprise established or acquired in accordance with the laws of the Host State. Unsurprisingly, new model BITs that seek to rebalance investor responsibilities have advocated the narrower definitions of investment.

B. Changes in Host State Law

25Increasingly, host states are using domestic law to enforce certain preferences and limit their “hospitality” towards investors. Some host states with strong regulatory environments have righted perceived imbalances in power by requiring investors to conform with local laws, pass screening tests, and make commitments with regards to human rights, the environment and labor (UNCTAD.ORG, 2019). Host state laws are also placing conditions of access on investors by requiring environmental reviews or exhaustion of local remedies before an investment claim is made.

  • 19 Cortec Mining Kenya Ltd. v. Republic of Kenya, ICSID Case No. ARB/15/29, Award (Oct. 22, 2018). ¶ 3 (...)

26One important recent decision that illustrates the rising importance of host state law is the 2018 award in Cortec Mining v. Kenya. The question in the case was whether the Claimant committed a serious violation of host State law by obtaining a mining license without conducting an environmental impact assessment. The tribunal determined it did not have jurisdiction over the dispute, stating that the claimant’s failure to comply with the legislature’s regulatory regime governing the Mrima Hill forest and nature reserve, and the Claimants’ failure to obtain an EIA license […] constituted violations of Kenyan law that […] warrant the […] denial of treaty protection under the BIT and the ICSID Convention19 (Cothula & Gathii, 2019).

27A related way in which host state law has become more important in regulating disputes involves human rights. On the one hand, host states have an obligation to respect, protect and fulfill human rights within their jurisdiction. On the other hand, host states have obligations under investment treaties towards investors that may come into conflict with those same rights. Although human rights claims remain at the periphery of most investor / state disputes, there is also an increase in the number of cases that intersect with or involve human rights claims.

28For example, in the well-known Urbaser decision involving a water concession agreement in Argentina, the tribunal discussed the International Covenant on Economic Social and Cultural Rights and the International Labor Organization (“ILO”) Tripartite Declaration of Principles concerning Multilateral Enterprises and Social Policy, and wrote: “the human right for everyone’s dignity and [the right to] adequate housing and living conditions are complemented by an obligation on all parts, public and private parties, not to engage in activity aimed at destroying such rights”. It then went on to distinguish between the duty of compliance, which falls on states, and the duty of performance which does not fall on a corporation. The tribunal concluded that “the investor’s obligation to ensure the population’s access to water is not based on international law. This obligation is framed by the legal and regulatory environment under which the investor is admitted to operate on the basis of the BIT and the host State’s laws” (Garcia & Hough, 2018).

29Because, as the tribunal observed, investors do not hold direct human rights obligations (as these fall on the states) the movement of corporate social responsibility (CSR) and business and human rights (BHR) have emerged as a way to supplement host state requirements imposed on foreign investors. Indeed, developments in these “soft law” areas have moved the needle on what can and should be expected of investors in exchange for their right to sue.

30Importantly, however, while host state regulation over investments has increased, home state regulation of investors operating in cross border economic activities has not moved forward to the same degree. This is because home states typically seek to protect the assets of their MNE’s investing abroad and reduce restrictions on foreign affiliates operating in host countries. Indeed, home countries have typically not wanted to assume obligations concerning the behavior of MNEs. The Guiding Principles on Business and Human Rights (UNGPs) take the position that “States are not [at present] generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction”. However, they also go on to say that home states should nevertheless “set out clear expectations that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations”. This is clearly one of the most important frontiers in righting asymmetries in investor / host state responsibilities.

C. Procedural Changes

31Procedural changes are also afoot which are imposing disclosure obligations on investors. The requirements for disclosure of third-party funding are perhaps the most significant example of these rules. Due to the sharp increase in litigation funded by parties who have no pre-existing interest in the litigation, concerns have been expressed that third-party funders like banks, institutional investors, or companies might gain excessive control over the arbitral process, leading to frivolous claims and discouragement of settlements. Moreover, the process has also led to conflicts of interest between arbitrators and third-party funders, due to lack of disclosure. As a result, there are proposals currently on the table at ICSID to regulate third-party funding altogether.

4. Conclusion

32We are in a time of early renewal of the ISDS system. Host states are using multilateral fora and treaty processes to define new rules of engagement for investors, including by renegotiating treaties or withdrawing from the system altogether (Peinhardt & Wellhausen, 2020). Simultaneously, important developments are influencing the framing of the system for the next generation, particularly with regards to certain values. These include balancing private rights with public power, in this context, the rights of investors (guests) with those of the host. In addition, there are efforts to provide a market advantage to the “right sort” of investors (i.e., investors that contribute to sustainable development or support human rights) which may have the effect of vindicating the rights and interests of affected third parties. Finally, reform efforts display a commitment to ensuring the integrity of the international arbitral process and promoting transparency, which serves to increase avenues for access to justice. Whereas in many areas of international law, there continues to be a narrative about lethargic host states and their guests as enemies, it is significant that this is no longer the case in the context of investment. Not only are the home and host states alike rebalancing the duties of guests towards the hosts, but hospitality itself is becoming more protectionist, less accommodating, and more regulated by law.

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Notes

1 Noting that HQ agreements for international organizations “headquarters agreements” or “seat agreements”, bilateral treaties between the international organization and the country where it has its headquarters or seat, or treaties concluded with non-host states in which international organizations operate regularly contain additional provisions on the exact scope of privileges and immunities.

2 Defining home state as the state in which a parent company is registered or domiciled (Davitti, 2020: 487, 489); defining home state as the country under whose law a TNC’s parent company is incorporated (Morimoto, 2005: 134–35).

3 According to the Online Etymology Dictionary, “hostility (n.): early 15c., ‘hostile action,’ from Middle French hostilité ‘enmity’ (15c.), or directly from Late Latin hostilitatem (nominative hostilitas) ‘enmity,’ from Latin hostilis ‘inimical,’ from hostis, in earlier use ‘a stranger, foreigner,’ in classical use ‘an enemy,’ from PIE root *ghos-ti- ‘stranger, guest, host.’ Hostilities in the sense of ‘warfare’ attested from 1610s.”

4 Jacques Derrida famously argued that the notion of hospitality retains the trace of hostility, while hostility retains the trace of hospitality.

5 It should be noted, however that some host states to UN Peacekeeping Missions are sophisticated and economically advanced, for example, Lebanon.

6 In recent decades, the primary objective of many peacekeeping missions has become the protection of civilians. Thus, when the host state becomes a threat to civilians, the UN has acted independently to protect civilians, in contravention of the host state’s hospitality.

7 Also note that host states are also often responsible for failing to take up the claims of their citizens.

8 Proactive and reactive responses to pregnancies resulting from sexual exploitation and abuse: An ecological model based on Haitian survivors’ experiences (on file with author).

9 In recent decades the primary objective of many peacekeeping missions has become the protection of civilians. Thus, when the host state becomes a threat to civilians, the UN has acted independently to protect civilians, in contravention of the host state’s hospitality.

10 Today, this protection is extended to foreign states through the protections offered by domestic laws such as the Foreign Sovereign Immunities Act, 28 USC § 1602 (1976). The purpose of the Act is to serve the interest of justice and protect litigants in the US as well as foreign states.

11 It also arises with regards to website providers and banking. Under the Communications Decency Act, 48 USC § 230 (1996), an interactive computer services provider, defined as “any information service […] that provides or enables computer access by multiple users to a computer server,” is the website host. Importantly, although the Act was originally passed to protect fledgling businesses and internet providers, today, the immunity provisions continue to be invoked broadly even for companies like Facebook.

12 Liquor Liability Law § 12.06. Courts will often look to whether an organization holds a liquor license to determine if it is a social host as opposed to a commercial host.

13 Sparlin (1986) quoting the dissenting opinion of Garibaldi J. in Kelly v Gwinnell, 96 NJ 538 at 568, 476 A.2d 1219 (1984) (“The most significant difference between a social host and a commercial licensee […] is the social host’s inability to spread the cost of liability. The commercial establishment spreads the cost of insurance against liability among its customers. The social host must bear the entire cost alone.”)

14 Liquor Liability Law § 12.06 (noting that some cases have established a duty of care by hosts towards minors when they knowingly serve them alcohol).

15 Liquor Liability Law § 12.06.

16 See Restatement (Third) of Foreign Relations Law of the United States, Part IV. Jurisdiction and Judgments, Chapter1. Jurisdiction to Prescribe, Subchapter A. Principles of Jurisdiction to Prescribe, § 402 cmt. c.

17 “Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part” (2017) OJ (L 11/23).

18 Similarly, the Morocco-Nigeria BIT (UNCTAD.ORG, 2016), signed but not yet in force, will require investors to apply, alongside the host state, the precautionary principle; maintain an environmental management system and uphold human rights in accordance with core labour and environmental standards as well as labour and human rights obligations; not engage in corruption, meet or exceed national and international standards of corporate governance; and operate through high levels of corporate governance. Morocco-Nigeria BIT, for commentary see Gazzini (Gazzini, 2017).

19 Cortec Mining Kenya Ltd. v. Republic of Kenya, ICSID Case No. ARB/15/29, Award (Oct. 22, 2018). ¶ 365.

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Kristen E. Boon, « Balancing Rights and Duties of Hosts and Guests under International Law: The Case Study of Investment Law »ILCEA [En ligne], 50 | 2023, mis en ligne le 01 mars 2023, consulté le 29 mai 2024. URL : http://journals.openedition.org/ilcea/16227 ; DOI : https://doi.org/10.4000/ilcea.16227

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Kristen E. Boon

Professor of Law, University of Ottawa Faculty of Law, Common Law Section.
kboon@uottawa.ca

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