When Yes means Yes: Free, Prior & Informed Consent in ‘One Belt One Road’ Projects in the Framework of Transnational Investment Law and Arbitration
With the One Belt, One Road ('OBOR')'s routes crossing over politically fragile countries, the potential impact of OBOR investment projects on the rights of the local communities, including indigenous population, might generate a strong adverse reaction towards these projects. This, in turn, could have serious effects, including not only social, political, and financial implications, but also, and, indeed, especially breaches of fundamental rights, environmental harms of sorts, and even human life losses.
We first highlight the importance of local participation in decision-making on foreign investment projects in the context of transnational investment law and arbitration ('TILA'). We then delve into the different sources of international law to scope the right of indigenous peoples, and wider local population, to free, prior and informed consent ('FPIC') in the context of OBOR projects. Finally, we analyse the obligations on the host States and investors in relation to such a right to FPIC, particularly by drawing on recent jurisprudence in TILA.