The “Invisible” Local Communities: Foreign Investor Obligations, Inclusiveness, and the International Investment Regime

Abstract

International investment law is relational. It is about how we define and govern the relationship between the actors involved in and affected by foreign investment projects. Most international investment law literature confirms the relational nature of this field. The scholarship has analyzed the resolution of specific disputes and the regulatory relationship between foreign investors and host states. As could be expected, some of the key issues that have emerged include states’ right to regulate, the risk of regulatory chill, and how to review state regulation. There is, however, an important blind spot in this relational approach. A look at many foreign investment disputes, particularly in the natural resource extraction sector, shows that local communities are also central protagonists of foreign investment projects. These communities have a lot at stake but have remained almost invisible to the international investment regime. Apart from the ability to submit amicus curiae briefs, they have neither rights nor remedies in this regime. This essay discusses international investment law from an inclusive relational perspective, and shows how, contrary to this perspective, recent awards in investor-state dispute settlement continue to render invisible local communities and their rightful aspirations.