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.