The Judicialisation of the Social License to Operate: Criteria for International Investment Law

2021 ◽  
Vol 22 (1) ◽  
pp. 92-128
Author(s):  
Raúl F. Zúñiga Peralta
Keyword(s):  
Public Interest ◽  
International Investment ◽  
International Investment Law ◽  
Social License To Operate ◽  
Legal Term ◽  
Social License ◽  
The Social ◽  
Investment Law ◽  
Bear Creek ◽  
The Relationship

Abstract The Social License to Operate (SLO) is a non-legal term which has been widely conceptualised as meaning a particular set of interactions between investors and affected communities. Within the international investment law field, even though tribunals previously analysed situations of social conflict, the wording SLO had never been considered by an investment tribunal until Bear Creek Mining Corporation v Republic of Peru. This article argues that if the SLO of the investment is involved in a dispute, tribunals should thoroughly analyse the relationship between the investor and the affected community and establish (judicialise) a standard of review for the investor’s conduct which should only include those aspects of the relationship that might be considered as affecting or forming part of the national public interest. In addition, this article puts forth the criteria for the judicialisation of the SLO in investment disputes, drawing upon the Bear Creek scenario as relevant background.

scholarly journals Analyzing the Social License to Operate in International Investment Law

2020 ◽  
Vol 9 (2) ◽  
pp. 1-17
Author(s):  
Rudresh Mandal
Keyword(s):  
Local Population ◽  
International Investment ◽  
International Investment Law ◽  
Applicable Law ◽  
Investment Treaty ◽  
Social License To Operate ◽  
Social License ◽  
The Social ◽  
Investment Law ◽  
Bear Creek

A small segment of Investor-State Arbitration flows from the consequences of resistance by the local population (particularly, indigenous people) against the particular investment, and the concerned State cancelling permits granted earlier, precluding all future activities of the investor. This paper seeks to argue that when faced with an investment treaty dispute of this nature, arbitrators should (and indeed may be required to) reflect on the Social License to Operate (SLO) as a part of the applicable law. It aims at creating a framework within which the Social License to Operate should be conceptualized by investment tribunals in the future. The article first examines the nature of the social license to operate and then goes on to highlight its existence in relevant bodies of international law. Thereafter, the article seeks to analyze its use in past investment tribunals, such as the award laid down in Bear Creek Mining v. Peru, and uses this analysis as a springboard to construct a way forward for future applications of the concept.

scholarly journals Resolving the Question of Inter-Scalar Legitimacy into Law? A Hard Look at Proportionality Balancing in Global Governance

2018 ◽  
Vol 31 (4) ◽  
pp. 793-815
Author(s):  
MING-SUNG KUO
Keyword(s):  
Global Governance ◽  
International Investment ◽  
International Investment Law ◽  
State Immunity ◽  
Human Rights Advocacy ◽  
Investment Law ◽  
Legal Administration ◽  
Narrative Framework ◽  
The Relationship ◽  
Fundamental Values

AbstractIn this article, I examine the attempt to apply proportionality balancing (PB) to the co-ordination of the relations between governance regimes, which I call ‘inter-scalar PB’, from the perspective of competing institutional arrangements of global governance. Observing inter-scalar PB becoming a legal technique of management, I argue that it be reconceived as a narrative framework within which the fundamental values and principles of individual governance regimes can be politically contested without antagonism. I first discuss the role PB has played in the interaction between the law of state immunity and international investment law and then take a closer look at the features of inter-scalar PB as intimated in those instances: simplism, normativism, institutionalism and legalism. I suggest that the complex fundamental issues concerning the relationship between governance regimes are left out in the proportionality analysis-mediated resolution of regime-induced conflicts, disclosing the depoliticization tendency in inter-scalar PB. Juxtaposing it with the indicator project in international human rights advocacy, I conclude that both are jurispathic and reflect the rationalist propensity in the legal administration of global governance. PB, reconceived as a language in which values, conflicts, and interests of each governance regime can be argued and narrated as part of the politics of reconstructing global governance, will help to recast global governance in more jurisgenerative terms.

Part VII Inter-linkages with Other Regimes, Ch.44 Investment

2021 ◽  
Author(s):  
Miles Kate
Keyword(s):  
Environmental Law ◽  
International Investment ◽  
Public Welfare ◽  
International Environmental Law ◽  
Multilateral Environmental Agreements ◽  
International Investment Law ◽  
Investment Law ◽  
Environmental Protection Policies ◽  
New Generation ◽  
The Relationship

This chapter discusses the relationship between international investment law and international environmental law. The contestation between the fields that emerged in the context of investor-state arbitration was blunt and initially resulted in the rules of international investment law being prioritized over the obligations of states under multilateral environmental agreements (MEAs), domestic environmental protection policies and decision-making, and the host state's public welfare regulatory space. Responding to that contest, the new generation bilateral investment treaties (BITs) and free trade agreements (FTAs) reflect the desire of states to work within a more balanced version of the environment/investment nexus. It is not yet, however, at a point where it can be said to be equally balanced in the engagement of international environmental law and international investment law, and there is evidently still room for significant improvements in the way in which environmental issues are understood and interpreted by arbitrators in investor-state disputes. But the culture and context in which the environment and investment are meeting is most definitely shifting and it is hoped that the trajectory continues still further in that direction.

scholarly journals THE INTERNATIONAL INVESTMENT AGREEMENT NOWADAYS: FROM THE CONSENT TO ITS SOCIAL FUNCTION AS A GUARANTOR OF THE INTERESTS OF CITIZENS

2018 ◽  
Vol 5 (7-8) ◽  
pp. 91-112
Author(s):  
Renata Alvares Gaspar ◽  
Felipe Soares Vivas de Castro
Keyword(s):  
Foreign Investment ◽  
International Investment ◽  
Citizenship Rights ◽  
International Investment Law ◽  
The Social ◽  
Investment Agreement ◽  
Investment Law ◽  
Legal Security ◽  
Globalized World ◽  
Direct Reflection

At the center of a globalized world and under intense transnational financial circulation, there is the foreign investment. In this sense, investigating the realization of the social and economic functions of the Foreign Investment Agreement is an insurmountable necessity for understanding its effects on the citizenship rights. Therefore, it was discussed the rapid and multiple transformations that the International Investment Law has been supporting over time and the direct reflection on the formation of the Foreign Investment Contracts that, nowadays, require complex answers to the achievement of legal security.

A Global Public Good? An Empirical Perspective on International Investment Law and Arbitration

2021 ◽  
pp. 91-118
Author(s):  
Daniel Behn ◽  
Ole Kristian Fauchald ◽  
Malcolm Langford
Keyword(s):  
Public Goods ◽  
Public Good ◽  
International Investment ◽  
Global Public Good ◽  
Global Public Goods ◽  
International Investment Law ◽  
Perspective Drawing ◽  
Empirical Perspective ◽  
Investment Law ◽  
The Relationship

The relationship between the concepts of international investment law and global public goods poses two essential challenges. The first is whether the international investment regime by design is a global public good. The second is whether the regime delivers benefits that are public and global in nature. This chapter addresses these two challenges through a largely empirical perspective. Drawing on three datasets, the authors seek to move beyond the current theorizing in the literature on this theme and base their findings on a comprehensive de jure and de facto analysis. After having discussed the idea of global public goods, they find that the regime high levels of de facto exclusion and in places rivalry, together with an uneven distribution of benefits, such that the international investment regime only partly fits the requirements for a global public good.

Illegal Investments in Investment Treaty Arbitration

2012 ◽  
Vol 11 (2) ◽  
pp. 281-323 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
International Investment ◽  
Foreign Investor ◽  
Considerable Potential ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law ◽  
Investment Treaty Arbitration

Abstract Investment treaty tribunals on numerous occasions have had to deal with the impact of breaches of domestic law by a foreign investor on the investment’s protection under an international investment treaty. In this context, tribunals had to interpret different “in accordance with host State law”-clauses contained in investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present article traces this increasingly complex jurisprudence and frames it as an issue of the relationship between domestic law and international investment law. Although different approaches exist, most importantly as to the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the article suggests that there is considerable potential for convergence in arbitral jurisprudence, thus unveiling the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.

scholarly journals Democracy and International Investment Law

2017 ◽  
Vol 30 (2) ◽  
pp. 351-382
Author(s):  
LORENZO COTULA
Keyword(s):  
Political Theory ◽  
Analytical Framework ◽  
International Investment ◽  
Democratic Governance ◽  
International Investment Law ◽  
Citizen Action ◽  
Investment Treaty ◽  
Common Thread ◽  
Investment Law ◽  
The Relationship

AbstractThe expanding reach of international investment law and the negotiation of major economic treaties between democratic polities have prompted new debates about the relationship between democracy and the international investment regime. This article develops an analytical framework for understanding that relationship. It first unpacks the concept of democracy, exploring the ‘rules-based’ and ‘action-based’ conceptions that emerge from political theory and their relevance to international investment law. It then examines three themes that frame the relationship between democracy and international investment law: the interface between the investment regime and national democratic space; the place of democratic processes in investment treaty making; and public participation in the settlement of investment disputes. The interplay between rules- and action-based dimensions provides a common thread across the three themes. The article concludes that there is a gap between formal rules and citizen action in promoting democratic oversight, and significant scope to develop more effective mechanisms to install democratic governance in the creation and implementation of international investment law.

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