DEFINING CULTURAL HERITAGE

Defining cultural heritage is an extremely difficult task. This concept has gradually evolved to include not only material objects such as building or landscapes or cultural goods but also intangible property, such as language, music, folklore, and healing. Cultural heritage constitutes an important component part of cultural rights. Indeed, cultural rights include both the duty to respect cultural freedoms and the duty to protect cultural heritage.

Cultural rights are mentioned in a series of international law instruments. For example, the Universal Declaration of Human Rights establishes the link between cultural rights and human dignity.²

Further, the International Covenant on Economic, Social and Cultural Rights affirms the right to participate in cultural life.³ Still, cultural rights have been traditionally neglected for decades. It is only in recent time that they have gradually come to the fore. This new sensibility is probably caused by two major factors: globalization and the intensive work of the UNESCO.⁴ Phenomena happening in remote areas of the world are increasingly knowable and open to public scrutiny. Further, from a more institutional perspec-tive, since its inception in 1972, the World Heritage Convention (WHC)⁵ has introduced a new way of looking at cultural heritage.

The WHC protects cultural heritage of outstanding and universal value, imposing erga omnes obligations on the adhering states. Thus, according to the Convention, protecting cultural heritage becomes a duty owned to the international community as a whole, as cultural heritage is seen as common heritage of mankind. This paradigm shift from absolute national sovereignty to erga omnes obligation is theoretical in the sense that there are not compliance mechanisms or economic sanctions if a state fails to comply with its international obligations under the Convention. Still, a state is willing to comply with the WHC for a series of reasons. Pride and reputation do play a role in international relations. Blame and shame mechanisms work in this context, albeit not always in a perfect manner.

However, the convention does not protect all cultural heritage of outstanding and universal value as such. Indeed, it adopts a listing approach, requiring States to initiate the procedure by submitting a list of eligible sites. It is only after a complex procedure co-opted by the WHC that a site is listed in the World Heritage List, engendering state's obligations to protect and preserve it.

The listing approach has been very much criticized. Some authors critically describe it as elitist, making artificial distinctions between local value and universal value.⁶

Crossfertilization of cultural patterns show that some local traditions may affect far away cultures.⁷ Value judgments of this kind necessarily involve a subjective assessment: culture has a relativist nature. Still, a cultural heritage valued by a minority may be of no significance to others, but this does not mean that this pattern should not be protected at all.⁸

INTERNATIONAL INVESTMENT GOVERNANCE

The law of foreign investment is one of the oldest and most complex areas of international law. Because there is still no single comprehensive global treaty, investor's rights are defined by a plethora of bilateral and regional investment treaties and by customary international law. International Investment Agreements (IIAs) provide an extensive protection to investor's rights to encourage foreign direct investment (FDI). The assumption is that FDI is a key element toward economic development.

At the substantive level, investment agreements not only provide a broad definition of investment, but also extensively construe the notion of compensable expropriation. For example, the North American Free Trade Agreement (NAFTA) article 1110 provides for protection of foreign investments from direct expropriation, indirect expropriation and measures tantamount to nationalization or expropriation, that is measures that do not directly take investment property but interfere with the use of property. Treaty provisions lack precise definition of indirect expropriation, and their language encompasses a potentially wide variety of state activity that may interfere with investor's property rights. Thus, a potential tension exists when a state adopts regulation interfering with the foreign investment. Because investment agreements do not provide protective exemptions for cultural, religious, or historical treasures, regulatory measures aimed at protecting cultural heritage may be considered as measures tantamount to expropriation. There is no settled approach to cases where investors allege that certain regulatory measures constitute a compensable form of expropriation.⁹

Still, the more recent jurisprudence of arbitral tribunals reveals a remarkable tendency to shift the focus of the analysis away from the context and the purpose of the state regulation to focus more heavily on the effects on the owner. Thus, if there has been an expropriation, there will be an obligation to pay compensation.¹⁰

The public purpose of a given regulation has been subject to only limited exploration by tribunals and is not per se a defense to a claim of expropriation.¹¹

Theoretically, the fact that a state enacted regulation in good faith¹² should help establishing the boundary that separates unreasonable interference from acceptable exercises of police powers.¹³ Police power can be defined as “The inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public scrutiny, order, health, morality, and justice. It is a fundamental power essential to government, and it cannot be surrendered by the legislature or irrevocably transferred away from government.” De lege lata, article 1114(1) of NAFTA preserves the police powers of states.¹⁴

Looking at the arbitral jurisprudence, in the Methanex case,¹⁵

the tribunal accepted as a principle of international law that a state is not responsible for bona fide regulation that falls within the scope of a generally recognized police power. However, the boundaries of the police powers exception are extremely vague. Thus, the concept has been rarely applied in arbitral jurisprudence, notwithstanding its theoretical value.

POWER AND JUSTICE IN FOREIGN INVESTMENT ARBITRATION

At the procedural level, investment agreements offer investors the possibility to bring claims before an arbitral tribunal. Investor-state arbitration is considered to be the best means to ensure protection to the investor's interests because it is aimed at avoiding national court bias and ensuring the advantages of confidentiality to businesses.

Still, although these arguments make sense in the context of international commercial arbitration, other concerns significantly arise in the context of investor-state arbitration. From a theoretical point of view, investment-treaty arbitration is properly viewed as public law adjudication because it replaces courts with a private model of adjudication in matters of public law.¹⁶

In this context, arbitral awards ultimately shape the relationship between those who govern and those who are governed; between state, on the one hand, and private individuals on the other.¹⁷ The arbitrators determine matters such as the legality of governmental activity, the degree to which individuals should be protected from regulation, and the appropriate role of the state. However, investor-state arbitration neither grants the public a formal role in the proceedings nor guarantees representation of the local state whose law is also been contended. Although a method is needed to settle investor-state disputes, the use of arbitration as such in this delicate field has shown some shortcomings that need to be redressed. In particular, the question is whether more transparency and amicus curiae briefs should be granted. Although some investment agreements have already institutionalized forms of transparency and public participation, most of these instruments do not provide room for publicity, thus engendering questions of legitimacy.

Another question that involves both procedural and substantive spheres is the possibility for a state to bring counterclaims.¹⁸

Although some investment treaties allow counterclaims by the respondent state after an investor has made a claim under the treaty, it is usually the investor who triggers the use of the system. Thus, it is possible that human rights violation by the foreign investor be dismissed as irrelevant in the context of the proceedings. The concrete result is that human rights issues are only marginally dealt with in the context of arbitral proceedings. For example, in the Methanex case,¹⁹ the right to clean water was not even mentioned in the final award, albeit the United States ultimately won the case.²⁰ In the Aguas del Tunari case, which involved the privatization of water resources, international public debate and national violent riots (the so-called water wars) led a foreign investor to settle the case.²¹ In both cases, the human rights issue was left aside the legal arguments and the merits of the arbitral proceeding.

However, social and cultural rights as well as civil rights should be considered as part of the investment package. Otherwise, from an economic point of view, foreign investors would be given an unfair advantage vis-à-vis national competitors. From a legal point of view, foreign investors would have rights without responsibilities. This unbalanced state of fact might lead states to withdraw their consent to investor-state arbitration.²²

This move may have dramatic results on foreign investments, because it would preclude foreign investor an impartial arbitral tribunal. Thus, to avoid overreactions, investor-state arbitration needs to be carefully rethought and reshaped according to the public or constitutional nature of the rights involved.²³ After examining some relevant case studies, this paper puts forward a method to reconcile investment arbitration and public policy interests.

CASE STUDIES

In this variegated landscape, it becomes crucial to verify whether there is conflict or coherence between different treaty regimes protecting cultural heritage on the one hand and investor's rights on the other. A series of contemporary case studies may help clarifying the issue at stake.

In 2002 the Noto Valley was added to the World Heritage List. The Sicilian Valley notably includes eight towns all rebuilt since 1693 after a earthquake almost completely destroyed preexisting towns. The reconstruction resulted in a fine mixture of Baroque art and advanced technique, implementing the first antiearthquake regulations.

Notwithstanding the obligations under the World Heritage Convention to protect and preserve the site, local authorities have recently granted a Texan investor, Panther Oil, a concession to drill gas in the Valley. Because the site is considered in permanent danger of earthquakes and Etna's eruptions, if Panther Oil makes use of this authorization the area will risk an environmental collapse.²⁴

Because a regional administrative court has confirmed the permission, the Italian government has declared its willingness to override Sicily's autonomy and to stop the project. Panther Oil has thus decided to cut the wells planned in the region from 21 to 8 and to avoid the Val di Noto.²⁵ Still, the situation is not entirely clear, because if the Italian government adopted regulation impeding natural resource exploitation in the whole region, the foreign investor might claim violation of investment treaty guarantees.

Another contemporary case has involved Heuersdorf, a village in Saxony, characterized by a notable fortified stone church (Figure 1). As a foreign investor acquired a concession over a coal mine close to the village, the conservation of the 750-year-old Emmaus Church was in danger. After negotiation, the American investor agreed to relocate the church in a close town. Although the case did not involve a cultural heritage site of universal value, it is worth mentioning because it was a win-win situation: The local inhabitants saved their cultural jewel transplanting it in a new environment; and the foreign investor had the chance to exploit his investment, albeit ultimately paying the transplantation costs.²⁶

Finally, an interesting case study concerned the Yellowstone. Declared a World Heritage Site by UNESCO in 1978, the park was endangered when a private investor decided to site a gold and silver mine close to the park boundary. So, after the site was placed on the List of World Heritage Sites in Danger, the U.S. government was able to negotiate a land-swap with the company to move the project to a different area.

These case studies well show the potential clash between state obligations to protect its cultural and natural heritage and investor's rights. Still this conflict is amplified when minorities' cultural rights are at stake.

CULTURAL LANDSCAPES AND INDIGENOUS HERITAGE

The negative affect that investment agreements may have on cultural heritage is particularly evident with regard to cultural landscapes, and in particular, indigenous peoples' sacred places. Cultural landscape is a geographic area that represents the combined works of man and nature. Sauer's classic definition is as follows: “The cultural landscape is fashioned from a natural landscape by a cultural group. Culture is the agent, the nature is the medium, the cultural landscape is the result.”²⁷

Virtually, all landscapes have cultural associations, because virtually all landscapes have been affected in some way by human action or perception. Thus, according to some authors, cultural landscape would represent “a way of seeing landscapes that emphasizes the interaction between human beings and nature over time.”²⁸

Aboriginal cultural landscapes are a specific type of cultural landscapes, being the places of indigenous peoples' livelihoods, identities, and belief systems. These areas are valued by indigenous peoples because of their complex relationship with that land, conceived in spiritual terms and based in cosmological patterns of experience.²⁹

Cultural landscapes have been protected under the World Heritage Convention since 1992, when the World Heritage Committee adopted this category, revising the cultural criteria used to justify inscription of properties on the World Heritage List to ensure recognition of the combined works of nature and man. To date only 37 properties on the World Heritage List have been classified as cultural landscapes.³⁰

For example, in 1993 the Tongariro National Park in New Zealand became the first property to be inscribed on the World Heritage List under the revised criteria. The mountains at the heart of the park have cultural and religious significance for the Maori people and symbolize the spiritual links between this community and its environment. Similarly, the Uluru-Kata Tjuta National Park in Australia forms part of the traditional belief system of the Anangu Aboriginal people.³¹

These two examples show that the concept of cultural landscape embraces indigenous heritage as well. However, the World Heritage concept only includes landscapes with an outstanding and universal quality. Further, as the WHC has a listing approach, it protects only the sites expressly designed by the member states and selected by the World Heritage Committee.

The point is that although indigenous peoples' cultural landscapes may look ordinary prima facie, they may be extraordinary from a cultural perspective, representing “monuments to … the people who lived and died unrecorded except unconsciously and collectively by the landscape modified by their labor. A cultural landscape is a memorial to the unknown laborer.”³²

Thus, it is extremely difficult to draw a line between what has a universal value and what has a mere local value with regard to cultural landscapes. Further, listing may depend on the political sensibility of governmental institutions to candidate a given area to the UNESCO consideration.³³

Still, cultural landscapes may be seriously threatened by investments in natural resources sectors such as oil, gas, and mining. Further, investment in the extractive industries has a negative affect on livelihoods of local communities and may also lead to significant environmental damage.³⁴

For example, the controversy which surrounded the creation of the Kakadu National Park in Australia may well explain how powerful development interests may endanger indigenous heritage sites. Kakadu was mainly listed on the World Heritage List because of its ecological value and scenic beauty but also for its cultural significance because it includes a number of Aboriginal rock art and spiritual places. The controversy erupted when one of its component parts, which were undergoing the listing process, included a uranium mine within its boundaries. On one side, investors attempted to block listing of this part of the park, launching a series of cases at the local courts. On the other side, nongovernmental organizations and the Mirrar Aboriginal people opposed the mining because it would have had an irreversible affect on the integrity of the land and the cultural heritage of the Mirrar peoples. Given the international diplomatic pressure, the federal government decided that mining would not be permitted in the zone and that the whole area would have been included in the World Heritage List.

The wisdom of resource exploitation, particularly in areas significant to Aboriginal people, was put into question in this pioneering case. However, indigenous heritage is not always considered to be of world importance. Thus, if deemed to have only a local value, it may be particularly at risk when mineral exploitation of a given territory is envisaged.

POLICY OPTIONS: INVOKING INTERNATIONAL LAW IN ARBITRAL PROCEEDINGS

After having examined some recent case studies, this paper highlights three different policy options: interpretation, negotiation, and legal drafting. With regard to the first policy option, an interesting question is whether and how arbitrators may apply international law in the context of arbitral proceedings.

For example, in a pending NAFTA case, the claimants are invoking international law in the course of the arbitral proceedings. Grand River, a Canadian company engaged in the tobacco exportation, argues that its investment has been harmed by the tobacco settlements in the United States⁵⁰

and seeks compensation. In general terms, the petitioners argue that state regulation aimed at protecting public health, requiring tobacco companies to make payments into special accounts, constitute an expropriation in violation of NAFTA article 1110. Crucially, because the claimants are Native Americans, they hold that the tobacco business is their traditional activity and that the case would involve their cultural rights.⁵¹

According to the claimants, respect of international law protecting cultural rights of indigenous peoples in the present dispute would be required by interpretation of NAFTA article 1105: “In any given case, the standard of treatment owed by a government will be informed by all sources of international law, including treaties, general principles, and customary international law.”⁵²

The question is whether this injection has to favor only the investors or might favor also the respondent state. Interpreting article 1105 and the fair and equitable treatment standard in a fair manner, all international law sources would be relevant. Thus, not only international law protecting indigenous peoples but also international health law would become relevant.

According to the World Health Organization (WHO), the tobacco epidemic is the second major cause of death in the world.⁵³

The WHO Framework Convention on Tobacco Control⁵⁴ (FCTC), entered into force in 2005, establishes broad commitments and a general system of governance for tobacco control. Recalling article 12 of the International Covenant on Economic, Social and Cultural Rights, which affirms the right of everyone to enjoy the highest attainable standard of health, the FCTC is aimed at protecting present and future generations from the consequences of tobacco consumption.

Although Canada has already ratified the FCTC, the United States has only signed the treaty. Thus, the question is whether arbitrators will take into account the provisions of the FCTC in the Grand River case. Because the FCTC is not yet applicable to the parties, it may be questioned whether its existence amounts to scientific evidence or consensus over the lethal effects of tobacco. A positive answer would help assessing the legitimacy and proportionality of the Master Settlement Agreements (MSAs).⁵⁵

Will arbitrators take public international law into account? Will they define cultural phenomena, such as tobacco consumption and trade, as cultural heritage? How strongly may arbitrators weigh cultural arguments against other interests and, notably, the human right to health? The clash between human rights and cultural heritage requires a balancing process of a constitutional nature.⁵⁶

With regard to the first question, arbitrators have already applied general principles of international law in the Decision on Objections to Jurisdiction.⁵⁷

Because the decision on the merits is still waited, one can wonder whether arbitrators will show the same attitude with regard to the substantive issues.

With regard to the balancing problem, a solution might be provided by the recent Convention for the Safeguarding of Intangible Cultural Heritage⁵⁸

(CSICH). This convention safeguards only intangible cultural heritage⁵⁹ that is compatible with existing human rights instruments.⁶⁰ Thus, even if smoking was deemed to be intangible cultural heritage of the Six Nations, it could not be protected under the Convention, because of its incompatibility with the human right to health.

The problem is that while the national judge knows the law that has to be applied to the case and applies it even if the parties have invoked different rules (iura novit curia), arbitrators generally consider only the investment agreements and the legal arguments expressly made by the parties (secundum allegata et probata). Still, it may be questioned whether international law may be legally ignored by arbitrators. This paper argues that the splendid isolation of international arbitration from international law has to come to an end. This is not arbitral activism, or something which goes against arbitral ethics. On the contrary, it is a natural consequence of arbitrators' duty to interpret investment agreements. Customary rules of treaty interpretation, as restated by the Vienna Convention,⁶¹

require treaty terms to be interpreted not only according to their strict textual meaning, but also in good faith, in context and in the light of their object and purpose.⁶² Moreover, terms must be interpreted taking into account any relevant rules of international law applicable in the relations between the parties.⁶³ This approach requires a systemic interpretation by arbitral tribunals.⁶⁴

The obverse of the same coin is that arbitrators should acknowledge their responsibility for the charting of the contours of international law norms and more broadly as cartographers of the international legal order.⁶⁵

If arbitral awards are referred to as authoritative precedent, arbitrators must realize their determinant role not only with regard to the single dispute but also with regard to the possible influence that their reasoning may have on subsequent arbitral panels.⁶⁶

NEGOTIATING CULTURAL DISPUTES

Beyond arbitral interpretation, negotiation, and other alternative dispute resolution (ADR) methods (that is, alternative to judicial settlement) represent the second available policy option to balance the different interests at stake.

Negotiation is conceptually conceived as an ADR mechanism.⁶⁷

In abstract terms, negotiation generally creates a win-win situation, where creative solutions may be envisaged, and both parties cooperate to reach a satisfactory result. Generally, negotiation amplifies the advantages and chances of both parties. In practical terms, negotiation has proven to be a strategic tool to enhance cultural heritage protection while allowing sustainable development.

For example, in the Yellowstone case, negotiation allowed the U.S. government to preserve its national park, while creatively swapping the investor's property rights. Similarly, in the Heuersdorf case, the local community was able to negotiate the relocation of its ancient church as part of the investment deal.

Also mediation may play a useful role in this context. Where the degree of animosity between the parties is so great that direct negotiations are unlikely to lead to a dispute settlement, the intervention of a third party to reconcile the parties may be practical.⁶⁸

Mediation is an ADR mechanism that involves the good offices of a neutral third party to facilitate communication between the discussants. Like negotiation, mediation is guided by the goal of finding a win-win situation for all parties through a creative process that focuses on the interests of the parties rather than on their positions and searches for creative alternatives to solve the dispute. Because the mediator does not have the authority to make a binding decision and does not follow a fixed procedure, the procure allows for flexible and dynamic dialogue. Further, mediation may involve other stakeholders' participation.⁶⁹

Successful negotiations and mediations may have a positive affect also on subsequent cases, providing a useful paradigm and creating confidence that conflicts may generate positive outcomes.⁷⁰

Time is another intrinsic advantage of these ADR methods, because these instruments usually achieve results in a short time frame. Importantly, these methods are not required to deal with the past: they ask the parties to look at their future and reshape their duties and responsibilities toward each other. Foreign investors thus participate to the decision-making process that ultimately affects them; they become aware of the local population interests. In these proceedings all the different interests are disclosed and discussed. Also, experience shows that agreements stand out for their durability when they are entered through a voluntary process. The underlying reason is the parties' high identification with the achieved result, which is perceived as fair.

However, the success of these above-mentioned cases should not lead to overemphasize these ADR methods. Indeed, these method can be extremely useful in situations where both contracting parties have equal or similar bargaining power. This happens when the host state is a developed country.

To the contrary, negotiation or other ADR methods seem ineffective when involving developing and least developed countries, which need foreign investments to foster development and growth. Because of this endemic need and other systemic characteristics such as potential local corruption, and collateral disregard of national minorities' human rights, these countries have the tendency to lower cultural and environmental standards (i.e., race to the bottom) to attract foreign investment flows. Further, from a political science perspective, the specter of a potential dispute with a powerful investor can exert a chilling effect on government's decisions to regulate in the public interest.

For example, in Honduras, the operation of Glamis Gold's mines has been the target of large community protests over the destruction of forests and contamination of the community's water supply. However, no environmental regulation has been enacted to cope with these environmental damages. Similarly, in Guatemala, the local community has vigorously protested Glamis Gold's plans to dig an open-pit gold mine, as the mining process, using cyanide to extract gold from ore, could contaminate the surrounding water supply. As the indigenous poor began protesting the mine, the government dispatched the military to quell the protests.⁷¹

Still, if local governments decided either to ban the cyanide process or to stop the mine in response to these health and safety concerns, these regulations might be deemed to represent respectively an indirect and direct expropriation under Central America Free Trade Agreement (CAFTA)⁷² and national governments could be held liable. In this problematic context, a legal approach is very much needed.

INTRODUCING CULTURAL EXCEPTION IN INVESTMENT AGREEMENTS

After having analysed the empirical or ex post approach to cultural issues in the context of arbitral proceedings and negotiation, it can be questioned whether an ex ante or legislative approach to cultural rights protection in investment agreements might be envisaged. This approach has already been adopted in the context of the Trans-Pacific Strategic Economic Partnership Agreement (Trans-Pacific SEP) and, to a more limited extent, in NAFTA and has had positive outcomes.

The Trans-Pacific SEP⁷³

sets out an exception to its obligations for the trade in goods and services to protect items or specific sites of historical or archaeological value. Significantly, this free trade agreement recognizes the need to promote cultural policies aimed at protecting the cultural heritage of the countries involved, both in its tangible dimension (archaeological and historical sites) and intangible one (creative arts). The flexibilities include the provision that New Zealand will not be prevented from adopting measures it deems necessary to accord more favorable treatment to Maori in fulfilment of its obligations under the Treaty of Waitangi.⁷⁴ According to the same provision, if another country invokes dispute settlement to investigate any action taken by New Zealand under this provision, an arbitral tribunal shall not be able to interpret the Treaty of Waitangi. The exclusive right to determine the meaning of the Treaty rests with the Waitangi Tribunal.⁷⁵

Notwithstanding its uncertain legal status, it is apparent that the Waitangi Treaty constitutes a crucial issue in New Zealander social affairs. Thus, the reservation introduced by the government in the Trans-Pacific SEP appears to be not only fully legitimate but also an important milestone toward promoting and protecting minorities' rights in international law. By creating a general exception with regard to indigenous people's rights, the state retains the possibility to introduce positive measures to promote and protect minorities' rights.

The bounty of introducing a cultural clause in investment agreements is proven also by the recent United Parcel Service case,⁷⁶

which involved debate over the applicability of the cultural industries clause in a NAFTA claim. The United States claimed that Canada's Publications Assistance Program (PAP)—a policy designed to promote the wider distribution of Canadian periodicals—was discriminatory to foreign investors. By contrast, Canada argued that the PAP was exempted from review under NAFTA by virtue of the cultural industries exception.⁷⁷ The tribunal upheld Canada's argument, but it did not apply the exception because it did not find any violation of national treatment. In this context, the broad interpretation of the cultural industries exception in the UPS case has to be welcomed. However, cultural heritage is not a cultural industry. Thus, it is necessary to consider the cultural industries exception as pivotal for broader legal drafting.

CONCLUSIONS

Having profound significance for human dignity, cultural rights do not only include cultural freedoms but also the preservation of cultural heritage. Because the implications of investment agreements for cultural rights is an almost unexplored field, this paper has attempted to shed some light on this stormy relationship.

Mineral exploitation may endanger cultural heritage. Although investment treaties protect foreign investors against the vagaries of unpredictable governments, recent case studies show that excessive protection of investor's rights may have a chilling effect on policymakers.

At a procedural level, as investor-state disputes often present a constitutional dimension, investor-state arbitration would require appropriate procedural reforms.⁷⁸

Major arbitral panels are responding positively to the requests by various public interest groups to make amicus curiae submissions.⁷⁹ In doing so, the tribunals correctly decide that the advantages of public debate outweigh any disadvantage of additional cost and additional complexity of the proceedings. Still, these novelties must be institutionalized.⁸⁰

At a substantive level, arbitrators should take international law into account, according to customary rules of treaty interpretation. Accordingly, this paper argues for constitutional balancing between the rights of foreign investors and other legitimate state concerns flowing from international human rights treaties. In any case, respect for cultural heritage has to be linked to respect for other fundamental human rights.

Although voluntary initiatives of foreign investors to preserve cultural heritage have to be welcomed, it is clear that the concept of good global citizenship alone is not enough. In this problematic context, ADR mechanisms may be useful to shift the arguments from the legal plane to the interests level. Still, ADR may be effective only where there is equal or similar bargaining power. Where there is no such condition, a legal approach is very much needed.

In this regard, cultural exceptions should be introduced in the text of investment agreements. On one side, this would provide certainty and black letter rules to foreign investors. On the other, this would adequately protect cultural heritage.