Neocolonialism and the Tension between International Investment Law and Indigenous Peoples: The Latin American Experience

In this chapter, we offer a general analysis of international investment law and the effects of investor–state dispute settlement (ISDS) provisions on Indigenous peoples in Latin America. BITs and FTAs have brought Indigenous peoples into direct conflict with foreign investors. Such clashes relate, inter alia, to ancestral lands, traditional heritage and knowledge, access to water and prior consultation. In resolving these conflicts, domestic policies and investment arbitral awards give priority to the economic interests of foreign investors. Regulatory chill has followed as a result. This prioritization may be the result of how treaties are drafted, characterized by the use of encrypted language. It is also impacted by the way arbitrators use a neoliberal ideology to interpret the treaties.