 What I intend to do in my presentation is really to focus on one case in which we participated. And perhaps I can start by just saying that the Legal Resources Centre where I work is a domestic NGO. So although we do some international work and some international activity, especially in the African Commission, our main work is as a domestic human rights organization. And so for us this was new terrain, it was very much a new world, the world of investor state arbitration. And we learned a great deal from our participation in a case involving South Africa. The expression is used of a spaghetti bowl of bilateral investment treaties across the world, now over 3,000 of them. South Africa itself has signed over 40 bilateral investment treaties, and most of these were signed after democracy arrived in 1994. So they were signed in the mid-1990s into the early 2000s. I've heard officials telling the story of how they came to sign some of these bilateral investment treaties, which were mainly signed with developed countries, principally in Europe. The officials talk about how on official visits to their counterpart's overseas, they were presented with instruments to sign without really fully understanding what they were signing. They understood themselves to be signing instruments in the nature of a sort of diplomatic expression of goodwill. And as it turned out, they were binding South Africa much more substantially, and exposing South Africa to the possibility of substantial claims in international investment law in international tribunals. And I think the experience of South Africa is probably typical of many developed countries that now find themselves bound by these agreements. On the face of them, as I say in this slide, the agreements provide symmetrical protection, so they protect the investors of both states when they invest in the other state. But in truth, the global reality is that the majority of these agreements are signed for the purpose of protecting the investors of developed states when they go into developing states. The claimed purpose, the justification that's always used by policy makers advocating the signing of BITs, is that they promote foreign direct investment, in particular in the developing state, by providing investors from developed states with protection that encourages them to invest more securely. The evidence of this, and I'm not an expert on it, is contested, the claim that bilateral investment treaties promote foreign direct investment. But what is clear is that there are certainly other impacts that bilateral investment treaties have. In particular, they carry the risk of impacting on human rights protections within states under domestic law. And the room for states to pursue sustainable development and protect the environment. And in particular, the room for states to operate within their own regulatory space. The bilateral investment treaties bind the states and confine them, and may restrict the policy options that are available to them domestically. There's also a related concern which is about dispute resolution. Most bilateral investment treaties provide for investor state arbitration as a direct alternative to domestic courts. So it's not even necessary to go to your domestic courts before approaching the International Investment Tribunal to seek relief there. So there's a concern about sidestepping and sidelining the domestic courts. Let me come then to the case in which we participated. It's referred to as the Piero Foresti case. It was brought by a group of Italian, principally Italian mining companies against the South African state. And the trigger for this case, the trigger for this dispute, was the introduction in South Africa of a new mineral law, the Mineral and Petroleum Resources Development Act. This really introduced an entirely new regime for mineral rights in South Africa. It replaced effectively private ownership of mineral rights with something known as state custodianship. So the state would hold mineral rights and allocate them for exploitation to different individuals or companies. And this law had two particular objectives. The one was to provide equitable access to mineral rights in South Africa, in particular to disadvantaged persons. Under apartheid, the vast majority of land in South Africa was placed by law restrictively in the hands of white people. And black people were restricted to very little land and therefore also mineral rights, because the minerals at that time went with the land. So the first and primary objective of this new mineral law was to open up access more equitably to black South Africans. A second significance of the law was to introduce some environmental protections on the exploitation of minerals, to complement other existing environmental laws. So when this law was introduced, the Italian mining companies, which were exploiting granite rights, launched a dispute, a claim in Ixid. It was a 260 million euro claim against South Africa in Ixid. They claimed that the new law expropriated their rights and also breached the fair and equitable treatment principle that Marcos was talking about earlier. The real reason for their complaint and why the law presented problems for them was that they didn't have any significant ownership by black South Africans. And one of the requirements under the new law would be a proportion of ownership by previously disadvantaged South Africans. So the law presented an obstacle to them unless they were willing to change their shareholding, which they were not. So they launched this dispute against South Africa. It's obviously a substantial sum, and it was the first time that a dispute of this nature looked likely to really run its course against South Africa and presented a real risk of an adverse finding. A finding of that nature, apart from the immediate financial impact of the award of 260 million euros, would have been likely to cripple the introduction of the new minerals law. It would have led to similar claims being launched by other mining companies under bilateral investment treaties, and also potentially domestic litigation by local mining companies seeking to rely on the findings of the Arbital Tribunal. So what then happened is that there was some publicity around the case. The exact details were not known, and I'll come now to some of the challenges around transparency. But it became known that there was this claim in civil society in South Africa and across the world. And so four organizations, including CL, which is where Marquis operates, and the LRC, my organization, together with InterRights, an international NGO, and the Center for Applied Legal Studies in South Africa, formed a coalition to intervene as non-disputing parties in this arbitral dispute before exit. So we pulled together a coalition, and really we were seeking to combine different areas of expertise. Neither of the South African NGOs had any experience of investor state arbitration, and we had limited knowledge of international investment law. We knew about South African constitutional law, and we knew about international human rights law. But we partnered up with CL and also with InterRights. CL obviously brought the expertise in terms of international investment law and investor state arbitration, and InterRights has particular expertise in international human rights law. So we pulled together a coalition that combined our different areas of expertise. And we began to engage with the arbitral tribunal initially by way of correspondence. We then had to prepare ultimately a petition, which was the document allowing us to participate in the proceedings. And we really asked for three main things in that petition. We asked to be allowed to participate as a non-disputing party and to place written submissions before the tribunal. Secondly, we asked for limited access to the documents of the parties in the arbitration. And thirdly, we asked for the opportunity to present oral submissions, oral argument at the hearing of the arbitration. So that was what we asked for. I want to touch now on why we did this. And there were two main areas of concern or objectives that we had. The first was substantive, so the legal and policy issues that were at play. And the second were issues of procedure. In relation to the substantive issues, our concern was in effect to place before the tribunal relevant principles of international human rights law and indeed domestic human rights law in South Africa to the extent that it was relevant. Our concern was that the dispute could otherwise be decided simply by the application of traditional rules of international investment law relating to requirements for expropriation, including the payment of full compensation, market-related compensation. Under international human rights law and the position is the same under South African constitutional law, it is lawful and permissible to take measures that might be described as affirmative action or in international law special measures, measures aimed at providing redress for historically disadvantaged people. And we wanted to run those substantive legal arguments as a pushback to international investment law principles about full compensation. We wanted to frame this mineral law not as an act of expropriation but as an act of redress for historical disadvantage. But we had a second set of objectives which were procedural. We were greatly concerned about the lack of transparency of investor-state arbitrations. They're effectively private proceedings, that's the default position, unlike domestic court proceedings which are by default open to the public. So we wanted to be there as a civil society voice as a voice representing the public interest. And in order to do that, it was clear to us and in order to be effective in our participation, we needed to have access to the parties' arbitral documents and we also hoped to be able to attend the hearing, hear their arguments and also make oral arguments of our own. In previous arbitral disputes, even where non-disputing parties had been allowed in, they had not been allowed access to the documents of the parties where the parties objected to such access. I'm just going to go back to the previous slide. So what we got was a ruling from the tribunal. It allowed us in as a non-disputing party coalition. It allowed us in principle to have access to the documents, but not to documents that contained confidential commercial information. So it allowed the parties an opportunity, the state and the mining companies, an opportunity to redact, to edit confidential information out of what would be provided to us. The tribunal didn't make a clear decision on whether we would be allowed to attend the hearing. What it said was that its preliminary view was that we would not be allowed to attend the hearing, and in fact that is what happened. So let me come then to how it all played out. In effect, the matter was settled. So there was never a decision on the merits of the matter, although we had got the ruling allowing us in and allowing us to have access to the documents. The terms of the settlement were, as it played out, that the mining companies would seek to discontinue their claim, and the South African government would effectively give the mining companies a partial exemption from the transformation requirements in the new law. So instead of requiring them to change their shareholding, to have shareholding by historically disadvantaged South Africans, the mining companies were to be allowed an alternative of beneficiation. In other words, some industrial investment in South Africa as an alternative to changes in shareholding. I asked the question whether this was a happy ending for all. It was rather odd and perhaps ironic, both parties, the state and the mining companies, claimed victory, and they went before the tribunal to argue the costs issue, and both claimed they had been successful. The mining companies claimed they had been successful because they had been granted this exemption and would be allowed to continue their operations. And the South African government claimed it had been successful because the mining companies had not obtained any finding that there was an expropriation or a breach of fair and equitable treatment. So they argued their costs as it turned out the tribunal ordered the mining companies to pay a portion of the South African government's costs, and that was the end of the matter. But really, for me, the matter did leave some unresolved issues. So there's the question of the place of international human rights law in investor state arbitration. How does it relate to the traditional rules of international investment law around expropriation? Are they mutually exclusive areas of law that have no bearing on each other? Alternatively, must there be some attempt to find unity between the rules of international human rights law and the principles of international investment law that seek to accommodate them? Or as a third possibility, does international human rights law have some sort of higher status and such that international investment law and the rules around expropriation and other such rules must yield to international human rights law treaties? So that is, I think, one big question that still remains. But for us as civil society organizations, there's also the question of the role of non-disputing parties. What degree of transparency will take place in these proceedings? Will non-disputing parties be allowed access to documents? Will they be allowed access to a hearing and the opportunity to participate fully, as we would expect in any domestic court? I think those are issues that still need to be pressed and where the agenda still needs to be pressed.