WaA Call for papers

International arbitration in the water sector


In the contemporary era shaped by the convergence of a series of crises (food, finance, energy, climate, environment) and the emergence of what has been called a global “resource grab”, struggles over water across the globe implicating a myriad of different actors are becoming more and more prevalent. One of the axes of struggle that has emerged is between transnational corporations and states. Through so-called Investor-State Dispute Settlements (ISDS) – incorporated into bilateral investment and/or trade agreements – foreign investors are granted rights to challenge host-states’ policies, herein policies around water. Investors and ISDS-proponents argue that these protections are needed in the face of political, social or environmental risks due to possible changes in the business environment or perceived breach in contractual clauses. The conflicts are adjudicated by an agreed-upon international institution or rule making body chosen to mediate the dispute and appoint arbitrators. In the water sector, arbitrations have been conducted regarding investments related to urban water supply and sanitation as well as activities potentially leading to the degradation of aquatic environments (mining, oil) – hence, some of the largest ISDS-claims made by investors have been water-related. While ISDS-cases formally only involve states and foreign investors, the cases therefore have widespread implications, including key societal questions around who should have what rights to which natural resources for how long, for what purposes and who gets to decide? This special issue aims at 1) documenting specific cases to identify the rationales, logics and practices deployed during disputes, and 2) to reflect on what ISDS reveals about the evolution of global water governance and corporate investments in the water sector. Some questions to be addressed include (but are not limited to):

  • The landscape of water arbitration: what are the institutions/courts resorted to, and the differences between them? Why resort to arbitration rather than the International Court of Justice in the Hague? What is their record and what is known about how they function? Moreover, in view of broader geo-political and geo-economic shifts what are the impacts of alternative investment protection proposals (e.g. arbitration mechanisms through China’s BRI) – herein implications for the existing system?
  • The rise of ISDS-cases generally and related to water specifically, happened at a particular conjuncture of neoliberal capitalist globalization. What are the relationships between the law of commercial contracts and broader questions of state’s right-to-regulate and civil-society struggles for right-to-water across the Global South and North? What have the implications of this system as it has subsequently developed been for substantive and procedural human rights, and access to water and other natural resources?
  • Discussions of developments in the field of international arbitration decisions and investment protection law, with a particular focus on the role of principles of public interest and their impact on national environmental, social and  economic regulations. What are the gaps and contradictions between national public interest regulation, decisions of national courts, international investment law, and arbitration decisions,  concerning natural resources, environmental protection, economic crises, public utility services, sustainable development, customary rights and human rights?
  • What are the availabilities of international jurisdictional venues for the protection of human rights and public interests and to what extent are decisions enforceable?
  • What evolution has there been of bilateral investments treaties’ contents concerning scope and reach of investment arbitrations, with particular focus on the latest development in the water sector?
  • What is the scope for conflicts of interests and moral hazard involving arbitrators, arbitration lawyers, public authorities and special interests groups under investment arbitration procedures?
  • What should countries do in terms of due diligence, public regulations, and public contracting and negotiations in order to successfully protect public interests within the system of international investment arbitration?

Papers can address a specific story (or a set of stories that lend themselves to comparison, and/or from a same country), and should discuss how the overall existing regulatory and legal framework (and pluralism) interacts and intersects with particular social, economic, (geo)political contexts. Papers should provide insight on the wider politics behind the scene and what happened and why.

Contributions can also deal with a generic aspect or question related to (water) arbitration but should not be overly focused on legal aspects and should keep in mind the interdisciplinary yet water-oriented readership of Water Alternatives.

Guest editors

Bernard Barraqué  <bernard.barraque@agroparistech.fr

Miguel Ricardo Solanes Guiard  <mrsolanes@yahoo.es>;

Mads Barbesgaard  <mads.barbesgaard.2321@keg.lu.se>

Javier Echaide  <jechaide@hotmail.com>;

Timeline

Call for paper: 25 July – 10 September 2019

Editorial decision on abstracts: 30 September 2019

Full paper submission; 30 January 20

Publication; 1st of June 20202

Send your abstracts to managing_editor@water-alternatives.org