Investor-state arbitration incentivizes the exploitation of Indigenous lands. Native communities are disempowered under international investment law and, given centuries of colonial oppression, often submit to mistreatment by multinational corporations. When they do, businesses profit. When they resist, prompting the state to expropriate foreign investments, arbitration reimburses the claimants, often in full. Existing proposals to safeguard Indigenous rights, which would redraft or reinterpret the investment treaties that give arbitration its substance, fail to account for the unwillingness of corporations and arbitrators to change the status quo. Modifying the procedural laws of ICSID, the largest arbitration institution, to bar expropriated claimants who have violated Indigenous rights would bypass this opposition and elevate Indigenous groups by raising the costs of abuse.

This Note begins by describing the nexus of colonial history and international investment law that disenfranchises Indigenous peoples. Then, in Part II.B, it analyzes ICSID case law and previous modifications to the Centre’s Rules to argue that a human rights amendment is legally cognizable. It further contends that this modification is politically feasible, given mounting opposition from ICSID’s member states and civil society to unethical arbitration out-comes. The Conclusion discusses the benefits and limitations of this proposal before exploring how it might serve as a steppingstone to the greater empowerment of Indigenous communities under international investment law.

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