INVESTOR-STATE DISPUTE SETTLEMENT, ACCESS TO JUSTICE AND LOCAL AND INDIGENOUS COMMUNITIES: BALANCING THE REALITIES IN THE MIX

Abstract

One of the critical issues arising from the intersection of international investment law and human rights is the question of whether investor-state dispute settlement (ISDS) holds any potency for access to justice for local and indigenous communities. It is a given that ISDS offers an aggrieved foreign investor the avenue to approach an international arbitral tribunal to seek compensation from the host state, in furtherance of a claim of breach of a Bilateral Investment Treaty (BIT) provision by the latter. With this, a foreign investor can rest assured of one thing: there is always a forum out there to intervene without thinking of suffering any victimization before the local courts or system of the host state. Howbeit, the same cannot be said of the local and indigenous communities, taking into consideration the normative character of the ISDS, which does not permit indigenous communities to institute claims directly save through the host states. As a result, it is left to be ascertained, the extent to which indigenous communities access justice under the ISDS mechanism – an issue which this research work is focused on addressing. As is indicated later in the conclusion herein, despite the introduction of certain mechanisms like amicus curiae and contributory fault into ISDS, indigenous communities are still limited in their ability to access justice, and there is no certainty that things will get better in the coming future if the needed changes are not introduced into the system.