Not all rights are created equal: A loss-gain frame of investor rights and human rights

Tomer Broude, Caroline Henckels

Research output: Contribution to journalArticlepeer-review


International investment tribunals often use the language of 'rights' to characterize foreign investors' claims against host states, evoking the language of human rights and, in some cases, appearing to conflate the two concepts. We investigate the cognitive framing of the relationship between investor rights and human rights in investor-state dispute settlement (ISDS), as characterized by investment tribunals. We first establish that arbitrators (and scholars and counsel) tend to characterize investor claims as rights claims in general and property rights claims in particular, even if this normative basis is far from precise. Second, building on behavioural economics and cognitive psychology, we argue that this characterization places human rights considerations at a structural disadvantage in ISDS. Investor rights are perceived by arbitrators as endowments that are possessed and that risk being lost, while the human rights of host state populations are viewed as aspirational demands that might only be fully realized in the future. Thus, governmental actions interfering with investments are perceived by arbitrators as actual losses, while competing human rights claims are perceived as potential gains or demands. Following prospect theory, the former (certain losses) will usually be weighed more heavily in a decision-making calculus than the latter (possible gains). This loss-gain frame provides a cognitive explanation for the prevalence of arbitral decisions that prefer investor claims over human rights, a phenomenon that is highly problematic in times in which the legitimacy of the ISDS system rests on its ability to consider the rights of non-investors.

Original languageAmerican English
Pages (from-to)93-108
Number of pages16
JournalLeiden Journal of International Law
Issue number1
StatePublished - Mar 2021


  • Cognitive psychology
  • Human rights
  • International investment law
  • Property rights
  • Prospect theory

All Science Journal Classification (ASJC) codes

  • Law
  • Political Science and International Relations


Dive into the research topics of 'Not all rights are created equal: A loss-gain frame of investor rights and human rights'. Together they form a unique fingerprint.

Cite this