This Monday I will be delivering a talk at Emory Law School, entitled ‘Public Interests in the Water Industry’.
Here is the abstract:
This talk will focus on the interplay between water concession contracts and investment arbitration. The liberalization of water services, together with processes of globalization, has prompted the emergence of a new type of disputes being submitted to arbitration panels. The purpose of this talk is to discuss different aspects of existing jurisprudence associated with public interest considerations in water concession disputes. It is argued that these services, traditionally qualified as ‘public’, are nonetheless being subjected to the generic language and logic of investment arbitration with little or no regard for the unique public interests involved in such cases. Different arguments have been voiced in these types of dispute, each associated with a different perspective on water rights. While there has been an increased resort to the language of ‘human rights’ by states and NGOs, it is surprising to notice that parties and arbitrators seldom refer to ‘consumer rights’, even though citizens are considered to be the beneficiaries of concession contracts and entitled to specific legal protection as consumers. As a consequence of this ‘silence’ over consumer rights, there is no reference to the public service obligations that traditionally bind the provider of the service. The liberalization of the water industry, combined with the privatization of dispute settlement methods, has led to an emphasis on economic aspects while downplaying its nature as a public or essential service.