Contracting in Land and Natural Resources : A Tale of Exclusion

By browsing the website of Land Matrix, one can measure the extent of land-related large-scale investments in natural resources (LRINRs) and place it on the world map. At the time of writing, the extent of these investments covers an area equal to the surfaces of Spain and Portugal together – or, for football fans, around 60 million football pitches. These investment operations have often been saluted as instrumental to achieve the developmental needs of host countries and as the necessary private counterpart to state (and interstate) efforts aimed at (sustainable) development goals. Yet, the realities on the ground offer a scenario characterised by severe instances of displacement of indigenous or local communities and environmental disruptions. The starting point of this short essay is that these ‘externalities’ are generated through the legal construct enabling the implementation of these investment operations. As such, this contribution lies neatly in the line of research set forth in the excellent books of Kinnari Bhatt and Jennifer Lander, from the perspective of both the development culture shaping these investment operations and the private–public environment in which these are situated. The essay tries and dialogues with both components, while focusing at a metalevel on the theoretical shifts potentially geared to turn a ‘tale of exclusion’ into a ‘tale of inclusion’. The paper covers a fraction of a broader research project that I am currently conducting on the triangulation of state (investment) contracts. Therefore, section 2 offers an overview of the background and premises of this research, and shows the relevance of the focus of this essay, namely the (mis)use of the ‘private’-law notions of property (section 3.1) and contract (section 3.2), and private-international-law techniques (section 4) employed in land-related large-scale investments in natural resources. Section 5 concludes. The aim is to show both how these notions have been interpreted and applied in the context of LRINRs to advance private interests and how these could be reshifted to accommodate competing interests typically excluded or sidelined by the applicable regulatory framework