Civil Society and Investor–state Dispute Settlement: Assessing the Social Dimensions of Investment Disputes in Latin America

Abstract

ABSTRACTInvestor–state dispute settlement (ISDS) has come to the forefront of debate over corporate rights in the contemporary era. While proponents laud ISDS as a neutral and efficient means of dispute resolution, critics claim that it shields transnational corporations from the oversight of national legal systems while enhancing their ability to interfere in host state policy matters. Moreover, because dispute settlement is carried out in international tribunals, ISDS is argued to disable citizen-driven politics. Governments have called on arbitration bodies to enhance the transparency of ISDS procedures and open spaces for civil society involvement. This reflects a desire to increase the legitimacy of ISDS in the face of mounting contestation. In this paper, I examine the multiple ways in which civil society actors intervene in investor–state arbitration inside and outside of formal channels. I focus specifically on two disputes involving foreign investors active in the water and hydrocarbons sectors of Argentina and Ecuador, respectively. I find that political pressure exerted by civil society actors influenced government decisions to break with investment rules and helped to shape government positioning within arbitral processes. Civil society actors must therefore be recognised as important participants in investor–state disputes.