Keywords
Commercial Arbitration
International Law
Foreign Investment Arbitration
Participation
Transparency
NGOs
Globalization
How to Cite
Abstract
This paper explores the rhetoric surrounding Non Governmental Organizations,
NGOs, participation in the context of foreign investment arbitration.
It argues that public participation is a crucial part of the investment
arbitration mindset, not in a subsidiary role or as a mere legitimating
devise, but as an expression of a substantial world view —which I call
here the “public interest narrative” in foreign investment arbitration. The
argument, though, is not normative, but rather seeks to show that, far from
being a mere goal, this “public interest narrative” is a central aspect of
investment arbitration today. To make this point, the paper explores three
iconic cases: Methanex (under NAFTA/UNCITRAL), Aguas de Tunari
(ICSID), and Biwater (the first case tried in its entirety under ICSID's
Rule 37). The paper concludes that scholars and practitioners working in
foreign investment law would be well advised in going beyond the view that
participation in arbitral procedures is a contentious issue pushed by some
activists in Geneva or Washington D.C. Participation is here to stay, and
seems to be affecting, in very crucial ways, the substantive (and financial)
outcome of arbitral procedures.
This journal is registered under a Creative Commons Attribution 4.0 International Public License. Thus, this work may be reproduced, distributed, and publicly shared in digital format, as long as the names of the authors and Pontificia Universidad Javeriana are acknowledged. Others are allowed to quote, adapt, transform, auto-archive, republish, and create based on this material, for any purpose (even commercial ones), provided the authorship is duly acknowledged, a link to the original work is provided, and it is specified if changes have been made. Pontificia Universidad Javeriana does not hold the rights of published works and the authors are solely responsible for the contents of their works; they keep the moral, intellectual, privacy, and publicity rights.
Approving the intervention of the work (review, copy-editing, translation, layout) and the following outreach, are granted through an use license and not through an assignment of rights. This means the journal and Pontificia Universidad Javeriana cannot be held responsible for any ethical malpractice by the authors. As a consequence of the protection granted by the use license, the journal is not required to publish recantations or modify information already published, unless the errata stems from the editorial management process. Publishing contents in this journal does not generate royalties for contributors.