Anna Aseeva: The Interface of Transnational Investment Law and Arbitration

The Interface of Transnational Investment Law and Arbitration, and Local Participation in Foreign Investment Decisions: Consent of Local Communities as a Potential Game Changer

Anna Aseeva

This project delves into studies and practice of transnational investment law and arbitration (‘TILA’) relating to local participation. The bulk of the existing research and most of the jurisprudence of TILA concentrates on the post-establishment phase of an investment, balancing the State’s hosting the investment (‘host States’) right to regulate and foreign investors’ property rights. Here, the emphasis is on the doctrinal need and actual cases where the investment tribunals have looked, or otherwise should have looked, at the events leading to the investment and the resulting scope of both state and investor’s obligations with regard to local participation.
Drawing on numerous ‘old-generation’ investment arbitration decisions, as well as some recent relevant awards, two crucial and interlinked issues in the perspective of societal costs of an investment are analysed in the project: (i) the situation of local communities; and (ii) the pre-establishment phase of foreign investment. Based on this, a framework of principles and actions should be drawn up to mitigate risks related to inadequate or totally absent local participation. These should comprise generally adequate investor-community negotiations, including for adequate compensation; broader, more open and transparent community engagement among all project parties; the implementation of Free, Prior and Informed Consent (‘FPIC’) or at least a proper consultation for any foreign investment with a large social impact, and not only for projects related to indigenous land rights; possible involvement and a somewhat adversarial use of ‘experts’, in the sense of legal and political public consultants and/or NGOs to inform communities participating (or willing or preparing to participate) in investment agreements: i.e. on pros and cons of this agreement for their local welfare, on their rights, etc. Notably, the environmental, social and other impact assessments should not be carried out (or ordered from ‘independent’ experts) by the same companies that are going to invest, but by mixed committees inclusive of all stakeholders – that is, representatives from the concerned local communities, the investors, the host State, and civil society.

Anna Aseeva is currently working at the Centre d’Etudes Juridiques et Politiques (CEJEP), University La Rochelle, and HEC Paris, France. In spring semester 2017, Anna was a visiting researcher at the Centre of Excellence for International Courts, Faculty of Law of the University of Copenhagen, Denmark with a grant of the Danish National Research Foundation, where she has worked on the research topic ‘Interface of sustainable development and transnational investment law and arbitration’.
Anna holds a degree in International Relations from the Geneva Graduate Institute of International and Development Studies; a MA in European Law and Institutions from the University of Geneva; a Russian Law Degree (J.D. equivalent); and a PhD in Law from the Law School of the Institute of Political Studies, Paris. After the completion of her legal clerkship in Brussels and Russia and obtaining the barrister qualification, Anna continued to work in the fields of European and international economic law, specialising in WTO law and policy, and foreign investment law and policy, with a particular focus on non-economic issues and exceptions. She has worked and consulted for the Swiss and French governments, UNECE, and the Economic, Social and Environmental Council, French Constitutional Consultative Assembly. She is also an alumna of, and regularly presenting at the Institute for Global Law and Policy, Harvard Law School. Anna’s most immediate research focus is presently at the interface of transnational trade and investment law and regulation and sustainable development, and the (re)conceptualisation of the commons.