The Tribunal, a short documentary film directed by Malcolm Rogge, is a must-see for all who are interested in international investment policy and ISDS. Rogge’s film offers the viewer a unique opportunity to observe the profoundly personal experiences of one set of community members in Ecuador, relative to the development of a copper mine in the Intag Valley.

To some viewers, especially those working in the field of ISDS, the film may seem jarring as it intentionally does not attempt to tell all sides of the story. Instead, it documents a raw and human story full of pain, injustices in the eyes of the community members, and documented violence against them. However, this “one-sided” story holds great value precisely because it documents a perspective that literally never gets heard—not least in the investment arbitration case that centred on the mining exploration project where alleged human rights abuses took place. Indeed, the film depicts how some community members are invited to Washington, D.C., to recount their experiences as supporting witnesses for Ecuador in the ICSID arbitration, but even then, the witnesses are never actually called to speak.

The most powerful lessons from this film arise not from the words of the people who are interviewed, but from what is communicated by their body language and facial expressions when they recount their experiences. Indignation and disbelief are expressed by Silvia, a technical college professor and nature defender, who, for the first time, encounters a redacted copy of the arbitral tribunal’s decision (offered by Rogge). She learns that many of the facts about the violence and human rights abuses are blacked out. As she sits uncomfortably, trying to hold in her emotion, it seems she does not know which is worse—the fact of never having seen the opinion, or seeing that their experiences are precisely the portions of the opinion that have been blacked out.

The sheer distance between the ICSID tribunal in Washington, D.C. and the lives of the people directly affected by the investment project in a remote part of Ecuador is palpable in the film. “Who are the arbitrators?” “Who appoints them?” “What is the process they follow?” Silvia asks. These are profound and legitimate questions that expose the not-so-implicit biases in a system that was created to “protect investment.” A system that, in its structure, rules, and practices, has explicitly sidelined human beings and the impacts upon them. As community members react to the decision by the tribunal to award the private investor a relatively large sum of money to be paid from the public coffers, this irony is described in the film by Robinson, President of the Sustainable Land Use Association, as a “double evil.” His frustration is expressed in three simple but fundamental questions about the events they experienced: “Who is to blame for this?” “Who evaluates all of that?” and “Who ends up winning?”

For those who work in international investment and ISDS, this film will undoubtedly arouse the urge to counter the story being told with technical and legal arguments about how investment arbitration is not the appropriate venue to hear claims about human rights abuses. But the film is an invitation to grapple with whether those technical counterarguments are actually on point. The more pertinent question that comes to the fore for me is, “How did we manage to create an international investment regime that literally forgot to take into account the human impacts of international investment?” If viewers get to this place, the film has done its job.

Author

Andrea Shemberg, Former Legal Advisor to the UN Special Representative on Business and Human Rights, John G. Ruggie

Note

The Tribunal, Directed by Malcolm Rogge, Produced by Columbia Center on Sustainable Investment, 2023.

Photo: Malcolm Rogge (not pictured) interviews Intag environmental activist, Cenaida Guachagmira.