Non-state actors, extractive industries, and the investment regime: What can be learned from six Amazonian investor-state disputes?

Abstract

The international investment regime was designed to reduce political risks—risks created by government action or inaction—faced by enterprises venturing abroad. It assumes that political risks are due to unitary host states, who, guided by national interests, would confiscate profitable foreign enterprises when opportune. This article argues, however, that political risks can have a different origin. In ecologically vulnerable areas, extractive projects can be polarizing, as some groups benefit from their existence while others suffer their consequences. In this setting, non-state actors may fight legally and politically to attract or expel extractive industries, generating policy uncertainties and political risk. To check this argument, the article examines five investor-state disputes coming from extractive projects located in the Amazon and which were caused, in part or completely, by the actions of non-state actors. The cases studied provide insights into the importance of non-state actors in the investment realm as well as the inadequacies of the current investment regime.