Inclusivity in the settlement of investment disputes : making a case for local communities

Abstract

This contribution examines the extent to which the Investor-State Dispute Settlement (ISDS) system takes into consideration the rights and interests of local African communities affected by investment disputes but are not parties to them. It argues that these communities receive unsatisfactory treatment, which often leads to their exclusion (or non-inclusion) from ISDS. The contribution goes further by exploring reforms likely to better protect these communities, increase their inclusion in ISDS as well as the legitimacy of the investment regime. The first part examines the raison d'être for inclusivity in investment arbitration and why it is important to talk about the inclusion of communities in investment adjudication. Zooming in on the case of African communities, the second part analyses the current participation of these communities in the settlement of investment disputes and attempts to demonstrate that this participation is limited and could lead to a partial or total denial of justice for affected communities, in other words, exclusion. The final part looks at some of the reforms and ideas that are currently being considered for better protection and inclusion of these communities.