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<p>While there are increasing calls for the full democratisation of both national and international governance structures, aimed at ensuring that all voices—particularly those of marginalised groups—are adequately heard, investment arbitration remains largely exclusionary. It continues to sideline the voices of local communities directly affected by investment activities. Operating as a dyadic mechanism that positions the state and the investor as the sole disputing parties, the current investor-state dispute settlement (ISDS) system offers no procedural avenue through which local and Indigenous communities may initiate claims or directly challenge investments that may adversely affect their rights or environment. Investment arbitration, in its prevailing form, does little to foster democratic participation. Shaped by entrenched (economic) power structures, it has historically served to reinforce the privileged positions of multinational investors and developed states. As such, it scarcely engages with the perspectives or lived realities of local communities situated in subaltern or formerly colonised territories. This contribution seeks to reconceptualise investment arbitration from a transformative democratic standpoint—one that recognises local communities not merely as stakeholders but as active participants in the adjudicatory process. The current amicus curiae mechanism, which permits affected communities to submit briefs to the tribunal under restrictive conditions, remains an inadequate substitute for genuine participatory rights. It effectively relegates such communities to the periphery of the arbitral process, without affording them meaningful procedural standing or influence. A truly democratized investment arbitration regime would empower local communities and indigenous peoples to represent themselves in the resolution of disputes, on terms that they themselves define and accept. Such a shift would necessitate the tribunal’s openness to alternative epistemologies and normative frameworks—including non-Western cosmovisions and conceptions of justice—that challenge the dominant, profit-centred paradigm of private contractual. A profound democratisation of the system thus entails not only procedural inclusivity but also epistemic pluralism.</p>

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Indigenous Peoples and Investment Arbitration: Seeking a Response to the Democratic Crisis of Investment Arbitration

  • 期刊论文

  • 发表日期：

    2026年2月26日

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  • Milcar Jeff Dorce,
  • Caleb Mac Bernard Dorce

摘要

While there are increasing calls for the full democratisation of both national and international governance structures, aimed at ensuring that all voices—particularly those of marginalised groups—are adequately heard, investment arbitration remains largely exclusionary. It continues to sideline the voices of local communities directly affected by investment activities. Operating as a dyadic mechanism that positions the state and the investor as the sole disputing parties, the current investor-state dispute settlement (ISDS) system offers no procedural avenue through which local and Indigenous communities may initiate claims or directly challenge investments that may adversely affect their rights or environment. Investment arbitration, in its prevailing form, does little to foster democratic participation. Shaped by entrenched (economic) power structures, it has historically served to reinforce the privileged positions of multinational investors and developed states. As such, it scarcely engages with the perspectives or lived realities of local communities situated in subaltern or formerly colonised territories. This contribution seeks to reconceptualise investment arbitration from a transformative democratic standpoint—one that recognises local communities not merely as stakeholders but as active participants in the adjudicatory process. The current amicus curiae mechanism, which permits affected communities to submit briefs to the tribunal under restrictive conditions, remains an inadequate substitute for genuine participatory rights. It effectively relegates such communities to the periphery of the arbitral process, without affording them meaningful procedural standing or influence. A truly democratized investment arbitration regime would empower local communities and indigenous peoples to represent themselves in the resolution of disputes, on terms that they themselves define and accept. Such a shift would necessitate the tribunal’s openness to alternative epistemologies and normative frameworks—including non-Western cosmovisions and conceptions of justice—that challenge the dominant, profit-centred paradigm of private contractual. A profound democratisation of the system thus entails not only procedural inclusivity but also epistemic pluralism.