The Tribunal - A Film by Malcolm Rogge in Partnership with CCSI
The Tribunal - a film created by Malcolm Rogge in partnership with CCSI - tracks the experiences of community members in the Intag Valley in Ecuador who were directly impacted by a potential mining project, a dispute that erupted as a result of the project, and the eventual arbitration proceedings in which the Canadian mining company sued the Ecuadorian government under the Canada-Ecuador bilateral investment treaty.
The community first suffered serious abuses while opposing a mining project on their land—an experience that was the subject of Rogge’s 2008 documentary, Under Rich Earth. For two years, opposition to the project intensified. The government eventually terminated the company’s mining concessions for failure to submit a complete environmental impact assessment, including mandatory consultations with the affected communities. In response, the company, which was able to circumvent the local courts, dragged the Ecuadorian government into arbitration in Washington, DC to demand compensation.
The community most affected by the underlying events found themselves unable to make their voices heard, not only before the establishment of the potential mining project and during its development, but also in the arbitration proceedings. The film reveals an interesting microcosm of the inequities pervading the investor-state arbitration system and international investment law by providing a rare look at the immediate, human impact of issues underlying arbitration that are more often discussed as legal abstractions.
Expert Reviews
Lorenzo Cotula, International Institute for Environment and Development; University of Strathclyde, UK
This beautifully filmed documentary sheds light on asymmetries and exclusions in arrangements to settle investment disputes – whose interests are protected, and whose voices are marginalised. Through their powerful testimonies, the participants lucidly expose the limitations of the system and highlight the need for a different model that does justice to their rights and to the complexities of investment disputes.
David R. Boyd, UN Special Rapporteur on Human Rights and the Environment
A very powerful and moving film - the people interviewed radiate integrity, and the natural beauty of the region is stunning. Directed by Malcolm Rogge and produced in association with the Columbia Center on Sustainable Investment, The Tribunal should be widely viewed. This film will help people to understand more clearly the injustices perpetuated by investor-state dispute resolution mechanisms.
Anil Yilmaz Vastardis and Tara Van Ho, Co-directors of the Essex Business and Human Rights Project.
This documentary film is essential viewing for anyone working in the fields of international investment law and business and human rights, but most importantly for arbitrators and practitioners of investment law and arbitration. The Tribunal brings to light powerfully two themes: (1) the physical distance of investment arbitration from the lived realities of impacted communities; and (2) the erasure of human rights and environmental impacts in the investment arbitration process.
Peter Muchlinski, author of Multinational Enterprises and the Law, Oxford University Press.
Malcolm Rogge’s The Tribunal/El tribunal, produced in association with the Columbia Center on Sustainable Investment, is a clear and impactful documentary film that conveys the real injustice of investor-state dispute settlement (ISDS) and the absurdity of an investor being able, in effect, to buy the right to violate human rights albeit with some reduction of damages for contributory fault. The film offers a strong argument for tribunals being more open to human rights issues and to gather relevant evidence from local witnesses and also from site visits. With some noble and laudable exceptions of individuals who are already doing this, arbitrators and legal counsel must wake up to their responsibilities as international lawyers and integrate human rights properly into ISDS to ensure justice for those adversely affected by irresponsible and illegal corporate behaviour. A good starting point would be to watch this film and listen to the voices of the people thus heard.