 I would first like to thank the International Institute for Environmental Development for inviting me to be with you all here today. Greetings from a cloudy morning here in New York City. My name is Marcos Urillana. I am with the Center for International Environmental Law, CL, which is a public intergovernmental organization that works to defend the right to a healthy environment. For a number of years we have engaged this topic of investment arbitration and human rights given the implications that investment law and arbitrations have for the effective enjoyment of human rights of people on the ground as well as for the development of human rights law. Today I am hoping to cover three main points, the basics of what is investment law and arbitration, secondly, how are human rights relevant to investment arbitrations, and third, how can NGOs participate in investment arbitrations. It has been our experience that investment law and arbitration, as I said, has direct implications for human rights and these questions will allow us then to address the central issues in the field. To start, I thought I would present a recent experience that we have been involved in, in a case involving El Salvador and a Canadian mining company, Pacific Rim, Pac Rim LLC, a subsidiary. The context generally of this case is that Pacific Rim was exploring for gold in El Salvador in accordance with the legal framework then prevailing in the country. El Salvador at the same time is a country that is overpopulated and highly dependent on a single water source, the River Lampa, which is overused, rather polluted and so there is this great water scarcity as we know gold mining presents various threats to water sources and this led civil society, local communities, NGOs to mobilize to defend the health of their environment under water sources. This began as a very local struggle of the local communities reacting against what they saw was the change in color and consistency of the water in the region and soon the movement acquired national proportions, a national round table against mining was set up involving numerous NGOs and that movement began to be able to intervene, to be present in a national debate concerning democracy and natural resource use exploitation. So key questions of sustainable development and sustainability generally, the previous one please. The government responded by conducting a strategic environmental assessment, so beginning a process of study prior to taking decisions regarding mining exploitation and the investor responded in turn by initiating an investment arbitration against El Salvador under ICSID, the International Center for Settlement of Investment Disputes of the World Bank, it's a center that administers arbitration and under the terms of the Central America Free Trade Agreement and the investment law of El Salvador. And the national round table against mining sought to intervene in the arbitration and we did so successfully in the jurisdictional stage and I'll come back to that. But these facts I think at this stage already demonstrate the relevance for human rights of investment law and arbitration, which leads then to the question, what is investment law and arbitration? At its core investment law is a branch of international law that protects the rights of foreign investors and their investments. Investment law achieves this objective through various sources, investment law sources include bilateral investment treaties, foreign investment contracts, these are contracts entered into directly between the investor and the government, as well as customary law, which refers to a source of international law that arises out of the practice of states accompanied by a belief that it is setting out a legal obligation. Customary law presents a number of standards such as expropriation and the minimum standard of treatment, which are also reflected in bilateral investment treaties. And that takes me then to the next slide, which is what are the principle norms in investment law? And these standards include, first of all, guarantees of compensation for expropriation. If the government takes the property of an investor, which it can do under general principles of international law, it is nevertheless obliged to pay adequate compensation. The direct expropriation, so the taking of title by the government of the investor is usually not a problematic issue in investment law, it is more problematic to deal with situations of indirect expropriation to determine when a law of general application has the effect of an equivalent effect of depriving the investor from its property. So the investor may still have title to its property, but a law of general application such as an environmental law or a norm for the promotion of human rights may have an impact on expected profits. And that is the concept of indirect expropriation. Another investment law standard is the fair and equitable treatment standard. This standard is quite relative as the words fair and equitable denote and connote. What is fair and what is equitable is contextual and depends on the circumstances and factual issues of the case. Generally the jurisprudence has evolved along certain lines and this standard has been interpreted to mean that the expectations that the investor had at the time of investing need to be respected. This interpretation based on legitimate expectations thus presents some tensions with the power of the government to adopt measures to promote human rights and to change the legal framework in order to protect the population in situations when it becomes aware of a particular environmental risk. In those situations the government has a constitutional and an international law obligation to protect its population including taking regulatory measures and if those regulatory measures affect the expectations including the expectations of profit of the investor then the fair and equitable treatment may enter into tension with human rights. There are two other standards worth mentioning there are many standards but these are the core I would say national treatment and most favorite nation treatment which generally relate to non-discrimination so the government must treat the national investors or other foreign investors in the same way. And finally there is the question of transfers. The foreign direct investment what it seeks generally is to make a profit as a result of an investment and then the ability to take out the money the profit out of the country out of the host country becomes a question and thus the guarantees of transfers enable the investors to take their money out back to where they came from or wherever they want to go. These are the principle norms in investment law and in a situation where these norms are breached or alleged to be breached by the whole state the whole state is the state that receives the investment then that leads to investment arbitration. Investment arbitration is the right of the investor to initiate a mechanism for the settling of disputes between investors and states. Investment arbitration is based on jurisdiction. This is a concept that is central to arbitration in fact to all mechanisms international mechanisms for the settlement of disputes and jurisdiction at its core refers to the power of the arbitral tribunal to hear and decide a case. Where is this power derived from? Where does the arbitral tribunal derive the power to hear and decide a case? It is this power is derived from the consent of the parties. This consent may be found for example in the bilateral investment treaty in the case that I was describing in El Salvador case, CAFTA, Central American Free Trade Agreement contains a clause that allows the investor to bring arbitral claims El Salvador's domestic internal investment law also allows the investor to bring arbitral claims before an international tribunal. That is where consent of the whole state is present. There are other forms of consent, but the most prevalent sources are bilateral investment treaties and with the proliferation of bilateral investment treaties which now number more than 3,000 around the world and with the expansion of investment for indirect investments in volume also around the world we see an expansion of the arbitral system of disputes that are being submitted to investment arbitration. With the expansion of disputes of bilateral investment treaties and of investments we see potential tensions between this field of international law and human rights and the environment. That leads me to the third point in this investment arbitration which is related to the arbitration rules. How is the specific procedure governed and this is where the arbitration rules come about. These are rules that determine what should happen in the process. Exit contains a set of arbitration rules which are applicable in exit arbitrations unless the parties otherwise decide and the same goes for unsetral rules which are applicable in situations where the parties decide to arbitrate according to the unsetral rules. Actually this choice is given to the investor in the bilateral investment treaty. The bilateral investment treaty will contemplate a menu of options that the investor can choose from and that choice will thus determine the specific arbitration rules that will govern the procedure. These arbitration rules are quite important not only because they govern the process but they will also determine the ways and possibilities in which civil society may participate in investment arbitrations. And in deciding whether or not to participate in investment arbitrations that leads to a discussion of how are human rights relevant to investment arbitrations. There are various ways in which investment arbitrations may be implicate human rights. The investment may involve human rights issues. The investor may be responsible for human rights violations or infringements or the dispute may involve measures adopted to protect and promote human rights. In all these situations human rights law may be relevant to the arbitration and the question that is how can NGOs participate in that arbitration. And this gets us back to the question of procedural rules, the extent to which those procedural rules either in exit or in unsetral or others allow for NGO non-disputing party participation. There is a tool that exit and unsetral utilizes the amicus curie brief describing how there are certain issues of international human rights law relevant, how there were issues relevant to the arbitration involving mining and empowerment and other issues in South Africa. So this is an example there. An amicus brief presents information or perspectives from civil society that help the tribunal decide the case. So this talks to the point that the informational perspective this must relate to the arbitration specifically to the issues under consideration. For situations cases where NGOs have presented or have sought to intervene as amicus curie include the methanics case versus the United States, a Canadian corporation that was pledging violations of the North American free trade agreement as a result of measures adopted by the state of California to protect ground drinking water, the case of by-water gauve in Tanzania which involved a water concession, a privatization process, a similar case to the Swiss Vivendi Argentina which involved also water privatization in the context of the economic crisis that faced Argentina a few years ago, the pure forest case that Jason Brickholt addressed and the pack rim case that I was speaking at the beginning. If we could identify a couple lessons learned or best practices we would have to note that a request by an NGO to the tribunal for leave to submit an amicus curie submission should demonstrate at least four things. The first thing is that the tribunal has the discretion to allow the NGO in the case. The second point is that the dispute must be suitable for public interest intervention. It could be argued that all investment arbitrations involve the public interest but there are some investment disputes that more intensely involve the public interest. A third point is that the petitioner, the specific petitioner is suitable to present public interest aspects to the question of what is the NGO, how is it funded, what is its expertise, how can its perspectives help the tribunal. And this relates also to the final question, the desirability of allowing the petitioner to intervene in the dispute at hand.