Book Review: Concessionaires, Financiers and Communities: Implementing Indigenous Peoples’ Rights to Land in Transnational Development Projects
| Published date | 01 April 2021 |
| Author | Jennifer R Lander |
| DOI | 10.1177/0964663920968202 |
| Date | 01 April 2021 |
| Subject Matter | Book Reviews |
K. BHATT, Concessionaires, Financiers and Communities: Implementing Indigenous Peoples’ Rights to
Land in Transnational Development Projects. Cambridge: Cambridge University Press, 2020.
Bhatt’s unique book offers a powerful double-edged sword to the literature on transna-
tional economic law, laying detailed empirical siege on the orthodoxies which fortify the
fields of both private commercial law and public international law in the process. With
regard to private law, her analysis demonstrates in detailed terms how private law and
actors exert profound political and legal influence on the state and the substance of
constitutional and human rights. Bhatt shows how, in practice, private legal processes
‘produce power and powerlessness and impact upon the application of the rule of law
today in the context of development projects’ (p. xiii), despite protestations by private
actors that they are ‘non-political’. With regard to public international law, she chal-
lenges the state-centric approach of international economic lawyers and scholars who
continue to predominantly focus on treaty-based law and relations as the key locus of
normative and distributive power in the global political economy. Bhatt shows how
development projects ‘challenge(s) traditional internationa l legal thinking which has
struggled to move beyond the organising logic of the nation state and the provision of
remedy through a purely judicial paradigm’ (xv). Instead she shows us how, brick by
brick, development projects become ‘sites in which power has become so concentrated
in the hands of investors that the private mechanisms brought to bear on a project by its
concessionaire and financier will routinely overshadow formal law and break down basic
rule-of-law characteristics around the clarity, predictability and fairness of the law, with
long-lasting implications for indigenous peoples’ (ibid).
Bhatt demonstrates how contractual and constitutional issues become deeply
entangled in the context of transnational development projects. While contract law and
constitutional law are treated in traditional legal education and mainstream academic
scholarship as legal siloes, Bhatt shows us how, in practice, complex contractual frame-
works which facilitate development project finance (PF) ‘can set the stage for long-term
expulsions, inequality, human rights and environmental concerns’ (p. 89). For example,
she details how PF transactions lead to the contractual construction of ‘a private limited
liability special purpose vehicle (SPV) to develop, construct and operate the project’
(p. 93). An SPV is insulated from the corporate sponsors’ assets, thereby minimising
their risk, and ‘enjoys general protection against international legal principles’ (p. 94) as
a purely commercial entity, even where the government is a minority shareholder. Bhatt
highlights how this ‘amplified focus on knowing the key bankability risks’ (p. 95) in the
early stages of PF mobilisation leads to a flurry of contractualisation between the cor-
porate sponsor, the SPV and other parties (e.g. the government) to secure access to land,
infrastructure assets, power purchase agreements and more. These contracts are ‘finely
tuned’ to the fact that loans will only be repaid from the project, leading to a ‘single-
minded emphasis on securing a clear, predictable and stable contractual framework that
will mobilise the project on time’ (ibid.). The focus on ‘bankability’ and ‘fast and
predictable revenue flow’ (ibid.) side-lines attention to the constitutional and human
rights impacts of a project, because the corporate sponsors of a proj ect are initially
focused on minimising commercial risks to attract investment in the SPV.
330 Social & Legal Studies 30(2)
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