In this event, Céline Lévesque (University of Ottawa) will present part of her ongoing work on international investment law and indigenous rights. Her draft will be discussed by two EUI PhD Researchers before opening up the discussion to all participants.
For a long time, it has been known that Foreign Direct Investment (FDI) presents particular challenges when it comes to the protection of indigenous rights. Investments in certain sectors, such as extractive industries, can pose health and environmental risks, issues of access to land or relocation, amongst others. Often, such investments will take place based on a contract signed by the State (or a State entity) and a foreign investor.
While some international investment treaties provide protections for indigenous rights, they do so mostly via limited exclusions and exceptions. Most such treaties do not engage directly with indigenous rights. As a result, international investment tribunals have also displayed minimal engagement with indigenous rights.
The question this presentation asks is whether international investment contracts provide an avenue for improving the respect for indigenous rights in the context of FDI – not as a replacement to international investment treaties, but as a complement that can especially affect upstream project design.
Critical to this is a recognition of existing sources of rights and guidance in relation to the respect for indigenous rights. As a matter of contractual practice, more could be done to ensure that meaningful consultations take place with indigenous communities when a planned FDI project may directly affect them. For instance, pre-contractual due diligence regarding indigenous rights should occur as a matter of course, whether the contract is subject to a public tender process or a direct negotiation. Other mechanisms to identify, prevent, mitigate and address potential adverse effects on indigenous communities should be considered at the time of project approval and contracting. Monitoring will also need to occur throughout the contract’s life cycle.
Speaker: Céline Lévesque has been a professor at the University of Ottawa, Faculty of Law, for more than 25 years and held the position of Dean from 2014 to 2019. She was President of the Canadian Council on International Law (CCIL) from 2019 to 2021. Céline is an expert in International Economic Law, in particular in International Investment Law. Most relevant to her presentation is that she is a member of the UNIDROIT/ICC Institute Working Group on International Investment Contracts. This project aims at developing guidance to foster the modernisation and standardisation of international investment contracts. Céline also acts as an arbitrator in investor-State cases. In 2024, she was designated to the ICSID Panel of Arbitrators by the Chair of the ICSID Administrative Council and President of the World Bank Group. Céline has been appointed to rosters for dispute settlement under the Canada-United States-Mexico Agreement (CUSMA), the North American Free Trade Agreement (NAFTA) and the Canadian Free Trade Agreement (CFTA).