Community-Investor Environmental Conflicts: Should and Could They Be Arbitrated?

Abstract

Communities that do not consent to noxious environmental projects have access to negotiation and mediation as alternative dispute resolution (ADR) tools. The absence of arbitration from the list of available ADR mechanisms cripples the process of investorcommunity engagement. This paper proposes "Community-Investor Environmental Arbitration" (CIBA) as prospective interest arbitration meant to establish long-term agreement between the parties to contentious environmental projects, similar to the role played in the U.S. by arbitration used in cases of deadlocks in collective labor agreement bargaining. The first part of the paper discusses normative, procedural, and instrumental factors that make CIEA desirable; also, it details its technicalities such as jurisdiction, applicable law, and procedures. In the second part, the paper suggests solutions for overcoming the likely rejection of CIBA by corporations. The solutions imply leveraging on values and interests at international organizations and/or government levels; as such, the paper gradually evolves from a transformative paradigm in the stage of problem identification, towards a pragmatic stance in the solution it proposes.