This is a special issue of Investment Treaty News. We’re focusing on the human stories often overlooked in international investment law and policy. The articles we are publishing in this issue are a direct response to Malcom Rogge’s documentary, The Tribunal (El Tribunal), a film that he produced and directed in partnership with the Columbia Center on Sustainable Investment in 2023; Ladan Mehranvar was Associate Producer. The film brings to the forefront what is typically hidden behind the scenes of an ISDS case: the real-world impact of an investment project and dispute on local communities.

Specifically, the documentary examines the Copper Mesa v. Ecuador dispute. While the case itself centred on an investment claim, Rogge’s film documents the profound effects of the underlying project and the ensuing legal battle on the people and environment of the Intag region in Ecuador. This ITN issue provides reflections on how The Tribunal lays bare the imbalance between investor rights and the rights of affected communities, a topic of central importance to policy-makers in developing and emerging economies, and increasingly in developed economies. A common theme emerging from the commentaries is the distance between the lived experiences of investment-affected communities and the ISDS system.

Peter Muchlinski’s commentary argues that the film makes a strong case for arbitration practitioners to integrate human rights and environmental considerations more fully into the ISDS system. He suggests that a visit to the affected community would have given arbitrators a better understanding of the human and environmental concerns brought about by the foreign investment.

Andrea Shemberg’s piece discusses how the documentary exposes the human impact of the Copper Mesa v. Ecuador case, highlighting the profound distance between an international arbitration system designed to protect investments and the real lives of the affected communities. Shemberg notes the film’s power lies in its focus on the story of community members, whose pain and experiences of violence were ultimately blacked out of the arbitral tribunal’s decision, making their voices literally unheard in the legal process.

Anil Yilmaz Vastardis and Tara Van Ho’s note also examines the documentary’s portrayal of the “distance” of investment arbitration from the lived realities of communities in Ecuador’s Intag region. The authors explain this distance as physical, epistemological, and cultural, demonstrating how the legal process—from the location of the proceedings to the redaction of the final award—systematically excludes and erases the voices, experiences, and human rights abuses suffered by local people.

Gabriel Bottini’s contribution begins by reminding us of a shifting legal landscape following the powerful advisory opinions from key international courts and tribunals articulating the state obligations on the right to a clean, healthy, and sustainable environment and the climate emergency. Viewing The Tribunal with these new developments in mind, Bottini explains that Rogge’s film represents a perspective seldom considered by investment tribunals because ISDS is designed to hear the voices of states and investors but not local communities. A key lesson emerging from the film is the need for tribunals to find ways to reach out to investment-affected local communities.

We recommend that anyone working on or interested in investor–state disputes watch The Tribunal. The film is also a valuable teaching source that brings lived experiences into the classroom and is a great addition to formal teaching materials.

The Tribunal can be watched here.

Josef Ostransky & Anil Yilmaz Vastardis

Note

Malcolm Rogge is a Business and Human Rights scholar based at the University of Exeter Law School and an international award-winning documentary filmmaker. He is Senior Advisor to Ecoforensic, a community interest company that supports rights of nature advocacy and litigation in Ecuador through citizen-science initiatives. In 2023, Rogge produced and directed The Tribunal, a 28-minute documentary film about human rights and international investment law in partnership with the Columbia Center on Sustainable Investment at Columbia University, New York.

Photo: Malcolm Rogge interviews Intag nature defender, Julio Espinosa.