Private regulators operating across national borders play and increasingly important role in areas once occupied exclusively by states and state law. These new regulators and their regulatory regimes challenge state-centred conceptions of law, including public law. The Equator Principles (EP) make up a private transnational regime that seeks to regulate infrastructure project finance world-wide. It includes detailed environmental and social impact standards and procedures. After offering a primer on Thailand’s constitutional system, the chapter turns to a case study of the Equator Principles regime that explains how it works, explores its impact in Thailand, and considers its implications – practical, conceptual, and normative – for the uncertain boundaries between private law and public/constitutional law in Thailand.

Chapter 4 analyses whether private mechanisms for implementing land rights in development projects can fill the gaps within the formal legal framework allowing communities to leapfrog those gaps to negotiate with power-holding concessionaires and financiers? This chapter introduces the devices for analysing this question: project finance mechanisms and company agreement-making. Focusing on project finance mechanisms requires understanding the private legal rules that bring life and value to the project’s assets. These forgotten elephants in the room are the devices within private contracts and policies and behaviours around which they are implemented, all of which matter for the recognising and implementing of indigenous peoples’ rights to land. Evidencing these interfaces means looking at the ordering of a project financing to see how it inherently treats indigenous rights issues within contractual mechanisms that operationalise lender safeguarding policies. Referring to sample clauses, I provide an overview of documentary interfaces between project finance devices and land rights issues where vulnerability to dispossesion is high and private discretion and priority is elevated.

This chapter provides some economic, social, legal and technical context to development projects and their interfaces with indigenous peoples’ rights to land and the focus of this book. Situating development projects within historical precedents from colonial times, it identifies some important new features of the modern development project landscape. These include the increasing proximity of international economic arrangements and transnational financial transactions such as project finance and its underlying documentary network with issues of indigenous land connection, survival and precarity. Against this background, the book’s objective is to consider how, under the conditions of a development project and its contractual framework and safeguarding policy architecture, private entities and judicial and non-judicial mechanisms frame, conflict with and informally delegate out the recognition and implementation of rights to land for indigenous people. In responding to this objective, I lay out the core themes that repeat throughout: fragmentation, invisibility, power(lessness), priority, delegation, (un)predictability and the integration of public and private remedies.