THE AUTHORS: Ana Milena Vives<\/strong>, Paralegal at Xtrategy LLP<\/strong><\/span>, Munia El Harti Alonso<\/strong>, Senior Consultant at <\/span>Xtrategy<\/strong> LLP<\/strong><\/span>, and Jose Antonio Rivas<\/strong>, <\/span>Founding Partner of Xtrategy LLP<\/strong><\/span>, <\/p>\n\n\n\n Jus Mundi<\/a> and the World Arbitration Update (WAU)<\/a> have partnered to cover some of the panels of its second edition, which kicked off on Monday the 26th<\/sup> of September 2022.<\/strong><\/p>\n<\/blockquote>\n\n\n\n The World Arbitration Update (WAU) addresses key and novel topics of investment and international commercial arbitration, as well as public international law. WAU has an objective to connect the different regions with the global community, creating a unique space for practitioners, private parties, arbitrators, academics and students to discuss and network. WAU nourishes the conversation by following a distinct format, in a decentralized forum in which each day the focus is on a specific region, starting with the Americas (covered in this post), Africa and MENA (Tuesday), Asia Oceania (Wednesday), Europe (Thursday), and lastly Friday was dedicated to diverse topics.<\/em><\/p>\n<\/blockquote>\n\n\n\n Launching WAU 2022 and the Day of the Americas coincided with the first panel: \u201cCommunity Consultations, Environmental Protection and Investment Projects in International Arbitration\u201d.<\/em><\/strong><\/p>\n\n\n\n The panel was moderated by Jose Antonio Rivas (Xtrategy LLP)<\/strong>, with presenter Ana Milena Vives (Xtrategy LLP)<\/strong>, and panelists Justice Natalia Angel (Constitutional Court of the Republic of Colombia)<\/strong>, Rene Ure\u00f1a (Universidad de los Andes)<\/strong>, James Anaya (Former Special Rapporteur on the indigenous peoples’ rights 2008-2014\/ University of Colorado)<\/strong>, and Andrea Bjorklund (L. Yves Fortier Chair in International Arbitration).<\/strong><\/p>\n\n\n\n Milena Vives<\/strong> set the stage by providing a crash-course on the Social License to Operate (SLO). The first part of her presentation focused on answering the fundamental question: what is the SLO? In a nutshell, the SLO refers to the informal acceptance or approval given by local communities and other stakeholders of a given industrial activity, and it holds four main characteristics:<\/p>\n\n\n\n Vives then clarified that even though, prima facie, <\/em>not obtaining an SLO does not constitute a breach of an investor\u2019s obligation under international investment law, there could still be de facto<\/em> practical consequences in the shape of protests, consumer boycotts and legal challenges.<\/p>\n\n\n\n The second part of her presentation focused on the concept of SLO under international investment law. Vives first looked at two cases \u2013 Cooper Mesa (<\/em>Copper Mesa Mining Corporation v. Republic of Ecuador, PCA No. 2012-2) and South American Silver<\/em> (South American Silver Limited v. Bolivia, PCA Case No. 2013-15) –<\/em> in which although the term \u201csocial license\u201d was not expressly formulated by the tribunal, it looked at the SLO through the prism of contributory negligence, in order to assess the social conflict surrounding the projects.<\/p>\n\n\n\n Vives then shifted the focus to the Bear Creek Mining <\/em>decision (Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB\/14\/21)<\/a><\/em>, the first international investment arbitration case in which the concept of the SLO was clearly articulated by the tribunal. In Bear Creek Mining, <\/em>the tribunal found the actions taken by the investor were pertinent regarding its community outreach and development endeavors. Nevertheless, the tribunal ultimately concluded that it is the obligation of the State to closely monitor the efforts conducted by the investor to obtain consent from the Indigenous communities, as well as to voice its concerns throughout the consultation phase of the project. This is in contrast with the Dissenting Opinion of Philip Sands, which pointed out that obtaining a social license is the responsibility of the investor, and that failure to secure this license should have been taken into consideration by the tribunal in its decision.<\/p>\n\n\n\n Justice Natalia Angel<\/strong> confined her analysis to the Colombian Constitutional Law perspective, with a focus on the right to prior and informed consultations of ethnic and tribal communities in Colombia<\/a>, and on municipal community consultations regarding mining projects. Justice Angel walked the audience through the process of how cases reach the Colombian courts through two main types of public actions \u2013 the action of unconstitutionality<\/a> before the Constitutional Court (also known as \u201camparo\u201d) and the individual rights \u201ctutela\u201d actions<\/a> before the common jurisdictions (lower courts).<\/p>\n\n\n\n Then moving to the jurisprudence that the Constitutional Court has crafted along the years, she made a special mention to the judgment of unconstitutionality C-030\/08 (C-030-08 Corte Constitucional de Colombia)<\/a>, and tutela decisions SU039\/97 (SU039-97 Corte Constitucional de Colombia)<\/a>, T-129\/11 (T-129-11 Corte Constitucional de Colombia)<\/a>, SU-095\/08 (T-095-08 Corte Constitucional de Colombia)<\/a>, SU-217\/17 (SU217-17 Corte Constitucional de Colombia)<\/a>, and SU-123\/18 (SU123-18 Corte Constitucional de Colombia)<\/a>. Justice Angel listed Colombia\u2019s current constitutional standards for prior consultations, stressing that it is a fundamental right and a mandatory requirement in the event that an administrative or legislative measure has the potential to directly impact ethnic communities.<\/p>\n\n\n\n Professor Rene Urue\u00f1a<\/strong> pointed out that the binding nature of obligations to respect human rights under the jurisprudence of the Inter-American Court of Human Rights<\/a> includes those concerning consultations. Urue\u00f1a identified that domestic courts are increasingly engaging with international investment law through four main vectors. The first one is the domestic constitutional review of BITs, this situation has already occurred in Ecuador<\/a> where the Constitutional Court notably found 17 BITs unconstitutional between 2010 \u20132014.<\/p>\n\n\n\n The second vector is concurrent jurisdiction, and this divides into two other sub-vectors: first when the Domestic court\u2019s decision is a denial of justice, triggering international responsibility; second when an Inter-American decision on the topic conflicts with an investment award.<\/p>\n\n\n\n The third and fourth vectors, are the review of non-ICSID international investment awards by domestic courts and the review of State\/private actions to comply with an award.. Part of Professor Urue\u00f1a\u2019s argument was that via jurisprudence of the Inter-American Court of Human Rights\u2019 jurisprudence and international law, the right and obligation to prior community consultations is obligatory in constitutional law of various Latin American States.<\/p>\n\n\n\n
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