Harmonization between Human Rights and Foreign Investment in Latin America, through the Arbitration Investment Tribunals, Based on Neil Maccormick’s Theory

Abstract

From an interpretative methodology, this article proposes that arbitrators can contribute to the harmonization between Human Rights and International Investment Law, based on MacCormick’s theory. This shows that an inclusive interpretation of human rights in investment matters is an “interpretation problem” that requires a “second-order justification.” To do this, it presents “consistency arguments”, “coherence arguments” and “consequentialist arguments” that arbitration practice could use in its cases to comply with the universality, coherence, and consistency requirements, necessary in this type of justification. Among others, the paper stands out as arguments that both regimes (human rights and foreign investment) are not contradictory or exclusive; that harmonization ensures the coherence of values within the international legal system; and that the arbitration function, due to its dynamic nature, is a leading entity that favors harmonization. The conclusion suggests that MacCormick’s theory of legal reasoning responds to one of the needs of contemporary legal pluralism about the fragmentation of international law, favoring the rapprochement between human rights and foreign investment based on the arbitration function.