Public participation in international investment law

Mr Ilias Kazeem presented a paper titled Public Participation in International Investment Law: Focusing on Host COmmunities of Energy and Natural Resources Projects" to the Centre of Commercial Law. 

Investment in energy and natural resources projects impact on the rights of the host communities of such projects. Even though the states generally have legal ownership of the resources, the projects affect the rights of the communities to ownership, use or occupation of land, environmental protection, human rights and rights of indigenous peoples. However, international investment law (“IIL”) primarily focuses on the protection of investments and the interests of the states. It appears to be blind to the rights of the local communities. The Investor-State Dispute Settlement (“ISDS”) which adopts the system of arbitration particularly affects the right of the communities in many cases that are known as ‘social disputes’ in the IIL. This makes the use of public participation as a norm of international law significant for the protection of the rights of the local communities implicated in investment disputes. Contrary to the traditional understanding that arbitration is generally private and confidential, investment arbitration is not entirely so. It is in the intersection of private rights and public international law. This is because the arbitrators interpret and apply investment treaties, as a matter of public international law. They also review government regulations that have relevance to environmental protection, human rights and the rights of indigenous people among other things. The norm of public participation therefore helps the tribunals to take cognisance of public interests. The norm has been codified in some investment treaties and investment arbitration rules, including those that stipulate public hearing for investment arbitration and/or allow amicus curiae submissions in the ISDS arbitration.  

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