Integrating Consent and Consultation into Investment Contract Negotiations
Investor-state land contracts are rarely negotiated in the presence of, or with meaningful input from, the people at risk of being adversely affected by the project. This can result in a failure to meet human rights requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when contracts grant investors rights to lands or resources over which local communities have legitimate claims. CCSI has researched how FPIC and consultation processes can be integrated into investor-state contract negotiations, taking into account the practicalities of contract negotiations, to better safeguard the land rights and human rights of members of project-affected communities.
In June 2020, CCSI shared a working version of an academic article entitled “Mechanisms for Consultation and Free, Prior and Informed Consent in the Negotiation of Investment Contracts,” which was published in final form by the Northwestern Journal on International Law & Business, Volume 41 (2020-2021).
In October 2019, CCSI made a submission to the Afronomics Law Online Symposium regarding the UNIDROIT/FAO/IFAD 2019 draft guide on Agricultural Land Investment Contracts. CCSI explored how tripartite or multi-actor investment contracts that include affected communities as parties can act as a vehicle for incorporating the right to give or withhold a community’s FPIC at the contract negotiation stage of a business project.
In April 2019, CCSI and the Middlesex University London School of Law co-organized a workshop with Indigenous representatives on the politics and practice of FPIC, which included a session dedicated to discussing how FPIC could be integrated into investor-state contract negotiations.
In March 2017, CCSI presented an early version of the above academic article on “Mechanisms for Consultation and Free, Prior and Informed Consent in the Negotiation of Investment Contracts” at the World Bank Land & Poverty Conference.