When Yes Means Yes: Free, Prior & Informed Consent (FPIC) in ‘One Belt One Road’ Projects in the Context of Transnational Investment Law and Arbitration

Abstract

Opposition from local stakeholders to greenfield foreign investment projects and the resulting conflicts have caused major concern for host States, foreign investors and financiers in recent years. With the One Belt, One Road (‘OBOR’)’s routes crossing over politically fragile countries, the potential impact of OBOR investment projects on the rights of the local communities, including indigenous population, and the adverse reaction this might generate towards these projects could have serious financial, social and geo-political implications. This contribution first highlights the importance of local participation in decision-making on foreign investment projects in the context of transnational investment law and arbitration (‘TILA’). It then studies the different sources of international law to scope the right of indigenous peoples, and wider local population, to free, prior and informed consent (‘FPIC’) in the context of OBOR projects. It then analyses the obligations on the host States and investors in relation to such a right to FPIC, particularly by drawing on recent jurisprudence in TILA.