You'd Better Listen: Notes on the Mainstreaming of Public Participation in Foreign Investment Arbitration

Abstract

This paper explores the rhetoric surrounding Non Governmental Organizations, NGOs, participation in the context of foreign investment arbitration. It argues that public participation is a crucial part of the investment arbitration mindset, not in a subsidiary role or as a mere legitimating devise, but as an expression of a substantial world view — which I call here the "public interest narrative" in foreign investment arbitration. The argument, though, is not normative, but rather seeks to show that, far from being a mere goal, this "public interest narrative" is a central aspect of investment arbitration today. To make this point, the paper explores three iconic cases: Methanex (under NAFTA/UNCITRAL), Aguas de Tunari (ICSID), and Biwater (the first case tried in its entirety under ICSID's Rule 37). The paper concludes that scholars and practitioners working in foreign investment law would be well advised in going beyond the view that participation in arbitral procedures is a contentious issue pushed by some activists in Geneva or Washington D.C. Participation is here to stay, and seems to be affecting, in very crucial ways, the substantive (and financial) outcome of arbitral procedures.

Keywords: international investment law, participacion, ICSID, civil society