Access to Justice
Among the critical issues that arise from the interaction of human rights and investment law is whether and how the relatively greater access to justice provided to aggrieved investors by the international investment regime undermines access to justice for other individuals and communities. International investment agreements (IIAs) and investor-state dispute settlement (ISDS) together provide a unique means of access to remedy for foreign investors, which in turn may create or exacerbate barriers to effective remedy for individuals and communities, including those affected by large-scale land-based investment.
CCSI is working to: (1) shed light on exactly how greater access to justice for investors affects individuals and communities; (2) in light of those findings, assess the appropriateness of specific policy options and responses on the part of host government policymakers and home state actors; and (3) develop a strategy to support policymakers and other stakeholders in better assessing and addressing the impacts of IIAs and ISDS on access to justice for investment-affected individuals and communities. Such a strategy could help to counter some of the pressure applied on host governments regarding investor protections. It will also inform a range of stakeholders regarding potential avenues to help rebalance legal protections in the context of large-scale resource investments, including those in land projects. This work is part of a series of projects and activities, supported by UK DFID, looking at legal support gaps and land-based investments.
CCSI’s most recent report, “How the International Investment Law Regime Undermines Access to Justice for Investment-Affected Stakeholders,” draws on a group of 13 ISDS cases (and two potential claims) that relate to the rights and interests of investment-affected communities and individuals and identify ways in which their access to justice is undermined, hampered or denied entirely by the ISDS mechanism.
In July 2019, CCSI, along with the International Institute for Environment and Development (IIED) and the International Institute for Sustainable Development (IISD), submitted a document to UNCITRAL outlining potential reform options concerning third party rights and ISDS. The submission: builds on work highlighting the impact of ISDS on access to justice for third parties; elaborates on how investor-state arbitrations can affect third parties; and offers examples of procedural tools that states could use to better safeguard those third parties’ rights. It was made in response to an invitation for submissions by states and other stakeholders on reform options (see para. 83 of document A/CN.9/970, Report of Working Group III on the 37th Session), which will inform UNCITRAL’s efforts around identifying and prioritizing particular solutions that UNCITRAL will develop in the next phase of its work. Other submissions made by CCSI and partner organizations can be found here.
In April 2019, CCSI hosted a meeting alongside UNCITRAL Working Group III’s 37th Session on reform of investor-state dispute settlement to discuss investment disputes and the rights and interests of third (or non) parties. The meeting provided government delegates and other stakeholders an opportunity to explore ways in which investor-state arbitration affects the rights of third parties, and to consider mechanisms that would allow investment dispute settlement processes to meaningfully consider the range of rights and interests at stake in investment disputes. Slides used for the opening presentation are accessible here.
In November 2017, CCSI, LSE’s Laboratory for Advanced Research on the Global Economy, and the UN Working Group on Business and Human Rights co-organized a session at the 2017 UN Forum on Business and Human Rights on implications of the international investment regime for realizing access to remedy.
In October 2017, CCSI and the UN Working Group on Business and Human Rights co-organized a roundtable to discuss the impacts of the international investment regime on access to justice. This short briefing note and longer outcome document summarize the key points from that discussion.
Related to its work on access to justice, CCSI has explored how international investment agreements and investor-state dispute settlement affect the rights of human rights defenders. In March 2018, CCSI submitted input to the UN Working Group on Business and Human Rights regarding “guidance on human rights defenders and the role of business” and input to the UN Special Rapporteur on the rights of Indigenous Peoples, Ms. Victoria Tauli-Corpuz, on “criminalization and attacks against Indigenous Peoples defending their rights: proposals for actions to prevent and protect.” In both submissions (available here), CCSI analyzes the possibility that the international investment law regime may exacerbate the repression and criminalization of human rights defenders in the context of investment projects.