Retooling International Investment Arbitration for Indigenous Peoples' Rights

• Author: Genevieve Steele
• Position: IIT Chicago-Kent College of Law
• Pages: 365-388

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

I would like to acknowledge Professor Rudolph Dolzer. His spirit lives on and his

work will continue to inspire and influence the world for the better. Also, special

thanks to Professor Carolyn Lamm, and Professor Albert Jan vand den Berg.

rEtooling intErnational

invEstmEnt arBitration for

indigEnous PEoPlEs’ rights

Genevieve Steel

IIT Chicago-Kent College of Law

E-mail: lcoguic@kentlaw.iit.edu

e area of international law that provides little recourse for indigenous peoples is in-

ternational arbitration. is occurs frequently because treaty disputes pertaining to the

extraction of natural resources are almost always arbitrated even aer suits are led in

domestic courts. Once a domestic suit is removed from a domestic court by the Defen-

dant, or in arbitral terms, the “Respondent,” the domestic suit is stayed, which means

it is put on hold or barred from continuing the suit, because aer such removal, the

arbitral court becomes the proper legal forum. As such, arbitrators of that forum take

on the right of jurisdiction over such a suit. Unfortunately, there is no legal standard for

indigenous people that arbitrators recognize and use in their analysis that forces arbitra-

tors to reference harms to the indigenous as substantive evidence. is article discusses

why this frequently occurs, and how it can be changed, and why the eld of investment

arbitration needs an International Indigenous Standard.

Keywords: e Right to Property, Intelletual Property Rights, Comparative Legal Analysis,

Sustainable Development, Environmental Law.

VIII Indonesian Journal of International & Comparative Law 365-88 (October 2021)

366

Steel

INTRODUCTION

Aer extensive research, the area of international law that provides lit-

tle recourse for indigenous peoples is investment arbitration. is oc-

curs frequently because treaty disputes pertaining to the extraction of

natural resources are almost always arbitrated even aer suits are led

in domestic courts. Once a domestic suit is removed from a domestic

court by the Defendant, or in arbitral terms, the “Respondent,” the do-

mestic suit is stayed, which means it is put on hold or barred from con-

tinuing the suit, because aer such removal, the arbitral court becomes

the proper legal forum. As such, arbitrators of that forum take on the

right of jurisdiction over such a suit. Unfortunately, there is no sub-

stantive law enacted for indigenous people that arbitrators recognize

and use in their analysis that forces arbitrators to reference harms to

the indigenous as substantive evidence. Further, when a domestic suit

is brought to court by indigenous peoples or the country in which they

reside where the damage took place, the evidence arbitrators oen ref-

erence is usually void of the harms actually suered by the indigenous.

Arbitrators should be required to view harm suered by indigenous

groups in investment treaty disputes as substantive evidence when the

harms caused involve exploitation in close nexus with the indigenous.

is article refers to several cases akin to Bear Creek Mining, where the

“State,” (Country in which the harm took place and where the indigenous

resided) oered substantial evidence proving the mining company did

not properly comply with national policy which included a universally

recognized law enacted by the United Nations that pertains to the

human rights of the indigenous. Despite UNDRIP (United Nations

Declaration on the Rights of Indigenous Peoples) being referenced, the

arbitrators found an award in favor of the mining company. is article

discusses why that frequently occurs and how it can be changed and

why the eld of investment arbitration needs a re-tooling. Investment

companies should not be able to use international investment arbitration

as a get-out-of-jail-free card. e world of international arbitration,

and investment arbitration, is one of the oldest and most beautiful

forms of universal law that oers so much globally. It is also a form of

litigation that will continue to be used more frequently in the future.

us, this issue of it being one of the most harmful legal forums for