Investor-state contracts are regularly used in low-and middle-income countries to grant concessions for land-based investments, such as agricultural or forestry projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This has serious implications for requirements for meaningful consultation, and, where applicable, free, prior, and informed consent (FPIC), and is particularly important in situations in which investor-state contracts grant the investor rights to lands or resources over which the community has legitimate claims.
The paper explores how consultation and FPIC 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. Based on a review of relevant international law standards and guidance documents, as well as a close analysis of typical investor-state negotiations and of consultation and consent processes in other contexts, the paper provides various options that may be appropriate, depending on the local context and the community’s resources and decision-making structures.
Sam Szoke-Burke & Kaitlin Y. Cordes,
Mechanisms for Consultation and Free, Prior and Informed Consent in the Negotiation of Investment Contracts,
Northwestern Journal on International Law & Business, forthcoming
Available at: https://scholarship.law.columbia.edu/sustainable_investment_staffpubs/14