...Following the recent decision of the tribunal in Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v Argentina, this blog post considers the circumstances in which a state may be able to bring a counterclaim under an investment treaty against an investor for human rights violations...

...The dispute concerned a concession for water and sewerage services in the Province of Buenos Aires granted in early 2000 to the claimants’ subsidiary, AGBA. The concession was ultimately terminated by Buenos Aires in July 2006...

...The tribunal rejected the claimants’ argument that (as a matter of principle) guaranteeing the human right to water, like other human rights obligations, was a duty borne solely by states. It stated that, while in the past it was held that only states could be subjects of international law, that principle had “lost its impact” in light of the acceptance of a corporation’s ability to invoke international law rights, for example under BITs [Bilateral Investment Treaties].

...the tribunal held that there existed an obligation on all individuals, including corporate individuals, not to engage in activity aimed at destroying the human right to dignity, and the right to adequate housing and living conditions. However, the tribunal could not find evidence of an obligation on corporations corresponding to the obligation of states to provide all people living under their jurisdiction with safe and clean drinking water and sewerage services (which was the obligation that Argentina alleged the claimants had breached). Accordingly, Argentina’s counterclaim was dismissed...