ABSTRACT

The tension between cultural heritage and private property rights has come to the forefront of legal debate in recent times, not least because it has been adjudicated before different fora, including national courts, regional human rights courts and international courts and tribunals. This chapter focuses on the specific ‘clash of cultures’ between international investment law and international cultural law. An example may clarify the issues at stake. An indigenous tribe has performed spiritual pilgrimage throughout the Californian desert for centuries and deems certain areas to be sacred land. How can and ought the law respond to the claim of a foreign investor that the legal protection of such land might constitute an indirect expropriation of the property rights of the investor? In the context of growing foreign direct investment (FDI) flows, the privileged regime created by international investment law within the boundaries of the host state has increasingly been called upon to define and coordinate tensions between investors’ rights and cultural heritage protection. In disputes brought before investment treaty arbitral tribunals, foreign investors have argued that regulations designed to protect cultural heritage have the effect of violating the rights accorded to them under international investment law. As adjudication plays a fundamental, bottom-up, role in the implementation of a given legal regime, this chapter analyses the adjudicative patterns of cultural disputes in order to test the effectiveness of international investment law and, indirectly, of international cultural law. Have arbitral tribunals paid any attention to cultural heritage and if so, how have they balanced investors’ rights and the cultural policies of the host State? What values and interests are at the heart of arbitral thinking and practice? One might expect the embryonic field of cultural heritage law to be overwhelmed by the long-established and sophisticated web of international investment treaties – not least given that arbitral tribunals have limited jurisdiction and so cannot adjudicate on the violation of other

norms of international law outside the realm of international investment law. However, this chapter shows that arbitrators have increasingly taken cultural concerns into consideration in deciding cases brought before them, refusing to limit themselves to purely economic standards of valuation. Nonetheless, concerns remain that, unlike bodies with, for example, responsibilities for human rights, arbitral tribunals are ill-suited to the task of protecting cultural rights. In order to address these key questions, this chapter defines the concept of cultural heritage disputes and illustrates the available dispute settlement mechanisms. Next, clashes of cultural and investment values and interests are illustrated with reference to the arbitral case law. Finally, the chapter critically assesses the relevance of alternative dispute resolution mechanisms in adjudicating cultural disputes.