Measuring Public Participation in International Investment Treaty Law: A Study of the Latin American Extractive Industries

One of the most severe criticisms received in the legal world has been directed to the existence of the dispute settlement mechanism of investor-state arbitration (ISDS). The Financial Times has referred to the ISDS process to be ‘unsuited to meet global challenges’.1 Criticisms to the system should not come as a surprise as these are not exclusive of the ISDS process.2 That said, despite the ordinariness of some of the criticisms, the transformation of the ISDS process is a worthwhile task to pursue in order to achieve a more transparent, consistent and cost-effective arbitration process. To this endeavour, the ongoing work of the ‘ISDS reform’ is currently tackling most of the ISDS pervasive issues.3 Nonetheless, a problem that remains unaddressed by the current ISDS reform, is the role of public and indigenous communities in investment projects. This paper uses the momentum gained by the current ISDS transformative era, to draw attention to this also very important issue and set the agenda on the beginning of a paradigm inclusive of communities’ rights in international investment law. So far, the problem has been that the ISDS process has been narrowly constructed in a way limited to a two-way relationship between investor and state. This paper proposes that the time has come to adopt a bigger dimension where public participation is a also recognised stakeholder in the ISDS process. The benefit is that our attention would be placed at
recognising the importance of endemic socio-economic global issues, where the law can foster a better dialogue in achieving domestic, regional and international social justice.4 This concern has been already recognised in the United Nation’s Sustainable Development Goals (SDGs), where the value of public participation has been identified as an intrinsic element of good governance.