Culture clash? : world heritage and investors’ rights in international investment law and arbitration

Vadi, Valentina (2013) Culture clash? : world heritage and investors’ rights in international investment law and arbitration. ICSID Review Foreign Investment Law Journal, 28 (1). pp. 123-143. ISSN 2049-1999

Abstract

Can States promote economic development without infringing upon the cultural wealth of nations? Although economic globalization and international economic governance have spurred a more intense dialogue and interaction among nations—potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage—these phenomena can also jeopardize the cultural wealth of nations. Foreign direct investments have an unmatched penetrating force with the ultimate capacity of changing landscapes and erasing memory. At the same time, the increase in foreign direct investment has determined the creation of legally binding and highly effective regimes that demand States to promote and facilitate foreign direct investment. Has an international economic culture emerged that emphasizes productivity and economic development at the expense of cultural wealth? Does the existing legal framework adequately protect the cultural wealth of nations vis-à-vis economic globalization? This article surveys a selected sample of investment arbitrations, showing that while international investment law has not developed any institutional machinery for the protection of world heritage through investment dispute settlement (after all international investment law is not intended to protect cultural heritage), in recent years, a jurisprudential trend has emerged that takes cultural heritage into consideration. After defining the concept of cultural heritage disputes, this study analyzes and critically assesses these disputes and explores the use of cultural exceptions as a tool to prevent disputes in this field.