Focus Section on NGOs as Users of ISDS: Navigating ISDS under Duress: A Harm-Reduction Framework for Civil Society [pre-publication] - European Investment Law and Arbitration Review View Focus Section on NGOs as Users of ISDS: Navigating ISDS under Duress: A Harm-Reduction Framework for Civil Society [pre-publication] by - European Investment Law and Arbitration Review Focus Section on NGOs as Users of ISDS: Navigating ISDS under Duress: A Harm-Reduction Framework for Civil Society [pre-publication] 10 2 [pre-publication]

Civil society organizations (CSOs) increasingly face legal repression by governments seeking to suppress dissent, yet domestic legal remedies and human rights protections are often inaccessible or ineffective. In exceptional circumstances, CSOs may be compelled to invoke investor-state dispute settlement (ISDS) to safeguard personnel, assets, and operations. This article balances the critiques of ISDS, often from CSOs, regarding investor privilege, opacity, and interpretive flexibility that can undermine public-interest objectives, while also recognizing procedural protections that can offer a neutral forum for due process.(See Lise Johnson, Lisa Sachs & Ella Merrill, Investor-State Dispute Prevention: A Critical Reflection, 75 CCSI Columbia Univ. (2021), https://ccsi.columbia.edu/sites/default/files/content/docs/ Dispute%20Resolution%20Journal%20-%20Johnson%20et%20al.%20-%20Investor-State% 20Dispute%20Prevention%20[16689].pdf (last visited 16 September 2025).) This article analyses the narrow, responsible claims CSOs might pursue, including indirect expropriation, fair and equitable treatment (FET), and denial of justice, and proposes a harm-reduction framework emphasizing procedural safeguards, transparency, strategic advocacy, and avoidance of harmful precedents. The framework is intended to help CSOs skeptical of ISDS evaluate whether it may offer procedural protection without implying general endorsement.

European Investment Law and Arbitration Review