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Investment Treaty Law and Climate Change

Author: Tomás Restrepo Rodríguez

Publisher: Springer Nature

Published: 2023-01-01

Total Pages: 348

ISBN-13: 3031186559

The book deals with the question whether the investment treaty law system could be harmonized with the climate change international legal framework and the climate interest that lies beyond. The answer to this research question is divided into three parts. The first examines the relevance of the climate change international legal framework in investment treaty disputes as a natural pre(logical)interpretative stage. The second focuses on the BIT’s content-interpretation, which is the orthodox approach to solve the fragmentation between the system of investment treaty law and the system of international climate change law. Finally, the third part tackles this fragmentation through a heterodox approach that is grounded in the direct application of climate change principles through law ascertainment. Apart from concluding that harmonization between investment treaty law and international climate change law is possible through the orthodox approach to the expropriation and the FET standards, as well as through the direct application of the climate change precautionary principle and the CBDRRC principle − heterodox approach, the book suggests that tribunals are expected soon to openly address climate change disputes in their rulings.

Investment Arbitration and Climate Change

Author: Annette Magnusson

Publisher: Kluwer Law International B.V.

Published: 2023-12-11

Total Pages: 373

ISBN-13: 9403542179

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At the nexus between international investment law, climate law, and human rights law, States’ obligations to protect foreign investments clash with their right – or even their duty – to regulate to protect the planet and people. State efforts at climate change mitigation and adaptation have already triggered claims of liability under the investor-protection provisions of bilateral and multilateral investment treaties. In this comprehensive elaboration on the topic, stellar experts and practitioners describe different types of climate-related investment disputes, provide a thorough analysis of the unique procedural issues that emerge in such disputes, and evaluate the proper balance between States’ right to regulate to fight climate change and their obligations towards foreign investors. Each of the book’s contributions offers a penetrating perspective on this complex matter, touching on such aspects as the following: investment disputes arising from States’ climate measures or actions; whether and how states can file counterclaims against investors in such disputes; the appropriate role for climate science at various stages of arbitration; how to assess damages in cases involving fossil assets left stranded by the climate transition; and whether, on balance, existing international investment law supports or hinders the global energy transition. Along the way, arbitrators and other practitioners will gain insight into how to argue, defend, and assess climate-related investment disputes, using not only investment-treaty case law but also international climate agreements, human rights law, and environmental law. Policymakers are shown ways to design and implement climate policy and investment treaties in order to avoid claims by foreign investors. For policymakers, treaty and contract negotiators, dispute resolution lawyers, and international organizations, no other resource provides such incisive discussion of how to balance treaty-based investment protection against states’ inherent duty to regulate in the public interest.

Reforming International Investment Law for Climate Change Goals

Author: Martin Dietrich Brauch

Publisher:

Published: 2020

Total Pages: 0

ISBN-13:

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To achieve global climate change mitigation and adaptation goals under the Paris Agreement, international investment law should enable and expedite the transition away from high-emission investment toward low-emission investment. Existing international investment agreements (IIAs) providing for investor-state dispute settlement (ISDS) fail to advance climate goals and can effectively hinder states' climate action. In this chapter, I discuss the implementation of two main policy options for climate-oriented reform of international investment law - termination of climate-unfriendly IIAs and negotiation of climate-friendly ones - at various governance levels, ranging from unilateral to multilateral action. Given the mounting risks and impacts of IIAs and ISDS, as well as the lack of evidence that they encourage foreign investment flows, terminating IIAs or withdrawing from them appears to be the most effective reform option. States seeking to conclude new climate-friendly treaties or to amend existing IIAs must ensure that the treaties legally distinguish between low-emission and high-emission investments. Climate-friendly IIAs must not hinder climate action ('do no harm'), by denying treaty protections to high-emission investments, limiting their establishment and expansion, removing incentives such as fossil fuel subsidies, and requiring investments to be made responsibly. In addition, IIAs should leverage the potential contribution of foreign investment to climate goals ('do good'), by incentivising, promoting, facilitating, and protecting low-emission investments only, and by supporting a just transition to a low-emission world. In line with broader efforts to reform international investment law, climate-aligned IIAs should also exclude or circumscribe controversial provisions (fair and equitable treatment [FET], legitimate expectations, indirect expropriation, and most-favoured-nation [MFN], to name a few), prohibit treaty-based challenges to climate policy measures, and deny substantive rights and access to treaty-based dispute settlement mechanisms to high-emission investments. Climate-unfriendly investors would instead need to rely on substantive rights and procedural avenues based on domestic laws.

Climate Clubs for a Sustainable Future

Author: Rafael Leal-Arcas

Publisher:

Published: 2021-08-23

Total Pages: 352

ISBN-13: 9789403537153

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Energy and Environmental Law and Policy Series #41 We know the science of climate change; we know the economics of climate change; we also know the law of climate change. However, we do not know how countries may come together to cooperate on climate change mitigation. In this connection, the role of international trade in climate change, although universally acknowledged, is not well understood. This groundbreaking book by one of the world's foremost authorities on international economic law not only investigates this role in great depth, but also explains how free trade agreements can be used as a powerful tool to help mitigate climate change. Focusing on the idea of climate clubs--namely the coalition of the willing--among governments, companies, and/or international institutions, the book offers insightful analysis on aspects of the trade-climate linkage such as: formation of climate clubs; legitimacy and accountability; technological cooperation; green patents; how competition law hinders effective cooperation between companies seeking to produce sustainable goods; domestic policy preferences; recognizing States that should legitimately be allowed to be free riders; and sanctions for noncompliance. Three detailed case studies are included: a comparison of the U.S. and European Union (EU) Generalized System of Preferences (GSP) programs, energy security in the Arab world, and EU-Russia energy trade relations. With the author's conviction that global access to energy, mitigating climate change, and benefit from international trade and investment all can be achieved, this book offers a fresh understanding of the international trading system as a way to reach a prosperous, modern, and sustainable society that will help decarbonize the economy effectively. It will be welcomed by all professionals and policymakers concerned with climate change mitigation, and particularly by those active at its nexus with international trade.

Investment Treaty Law

Author: British Institute of International and Comparative Law

Publisher: BIICL

Published: 2009

Total Pages: 356

ISBN-13: 9781905221127

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The Investment Treaty Forum of the British Institute of International and Comparative Law brings together eminent practitioners, arbitrators, and academics in the dynamic area of international investment law. Members of the Forum, under the British Institute's auspices, examine and debate the legal and policy issues presented by the increasingly complex web of investment treaties and the disputes that arise under them. The Forum held two conferences in 2007. This present volume compiles the papers presented at the conferences, as well as a transcript of the round-table discussion on the subject of 'precedent' in international investment. Part I of the book is devoted to remedies, compensation, and valuation in international investment disputes. This under-theorized area of law is ripe for further exploration by lawyers and economists, and the papers in this volume present a framework for further inquiry. Part II addresses the jurisprudence emerging from investment arbitration tribunals on issues such as fair and equitable treatment, 'umbrella' clauses, and nationality of claimants. The overarching question addressed by the papers, and by the concluding roundtable, is the relationship of those decisions with general international law and whether or not there is, or should be, a doctrine of precedent in investment treaty arbitration.

Shifting Paradigms in International Investment Law

Author: Steffen Hindelang

Publisher: Oxford University Press

Published: 2016-01-22

Total Pages: 497

ISBN-13: 0191058289

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International investment law is in transition. Whereas the prevailing mindset has always been the protection of the economic interests of individual investors, new developments in international investment law have brought about a paradigm shift. There is now more than ever before an interest in a more inclusive, transparent, and public regime. Shifting Paradigms in International Investment Law addresses these changes against the background of the UNCTAD framework to reform investment treaties. The book analyses how the investment treaty regime has changed and how it ought to be changing to reconcile private property interests and the state's duty to regulate in the public interest. In doing so, the volume tracks attempts in international investment law to recalibrate itself towards a more balanced, less isolated, and increasingly diversified regime. The individual chapters of this edited volume address the contents of investment agreements, the system of dispute settlement, the interrelation of investment agreements with other areas of public international law, constitutional questions, and new regional perspectives from Europe, South Africa, the Pacific Rim Region, and Latin America. Together they provide an invaluable resource for scholars, practitioners, and policymakers. The individual chapters of this edited volume address the contents of investment agreements, the system of dispute settlement, the interrelation of investment agreements with other areas of public international law, constitutional questions, and new regional perspectives from Europe, South Africa, the Pacific Rim Region, and Latin America. Together they provide an invaluable resource for scholars, practitioners, and policymakers.

International Investment Law and the Right to Regulate

Author: Lone Wandahl Mouyal

Publisher: Routledge

Published: 2016-03-10

Total Pages: 289

ISBN-13: 1317408012

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The book considers the ways in which the international investment law regime intersects with the human rights regime, and the potential for clashes between the two legal orders. Within the human rights regime states may be obligated to regulate, including a duty to adopt regulation aiming at improving social standards and conditions of living for their population. Yet, states are increasingly confronted with the consequences of such regulation in investment disputes, where investors seek to challenge regulatory interferences for example in expropriation claims. Regulatory measures may for instance interfere with the investment by imposing conditions on investors or negatively affecting the value of the investment. As a consequence, investors increasingly seek to challenge regulatory measures in international investment arbitration on the basis of a bilateral investment treaty. This book sets out the nature and the scope of the right to regulate in current international investment law. The book examines bilateral investment treaties and ICSID arbitrations looking at the indicative parameters that are granted weight in practice in expropriation claims delimiting compensable from non-compensable regulation. The book places the potential clash between the right to regulate and international investment law within a theoretical framework which describes the stability-flexibility dilemma currently inherent within international law. Lone Wandahl Mouyal goes on to set out methods which could be employed by both BIT-negotiators and adjudicators of investment disputes, allowing states to exercise their right to regulate while at the same time providing investors with legal certainty. The book serves as a valuable tool, an added perspective, for academics as well as for practitioners dealing with aspects of international investment law.

Foreign Investment Law and Climate Change

Author: Freya Baetens

Publisher:

Published: 2014

Total Pages: 27

ISBN-13:

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The international developments over the last century, the implementation of international rules and the interaction between different fields of international law have fascinated many legal minds. The expansion of international investment law in particular is occurring at such speed and in such a manner that overlap with other areas of law, such as international rules relating to sustainable development, seems unavoidable. One international rule-set promoting sustainable development is the climate change regime formed by the United Nations Framework Convention on Climate Change and the Kyoto Protocol. Both international instruments form good illustrations of the current groundbreaking trends in thinking about international law. One particularly interesting innovation is that the Protocol explicitly provides for the involvement of private entities, such as foreign investors, to achieve its goals of limiting and reducing greenhouse gas emissions.This Paper first provides a brief overview of the climate change regime and in particular, the different ways in which private investors can participate in the execution of the Protocol, the so-called Kyoto Flexibility Mechanisms: Joint Implementation, the Clean Development Mechanism and Emissions Trading. Secondly, through the analysis of a number of investment protection standards found in most international investment treaties (expropriation, nondiscrimination, fair and equitable treatment, and the prohibition on performance requirements), this Paper addresses the problems that the implementation of the Kyoto Protocol could create for the functioning of investment arbitration (and vice versa). Finally and most importantly, the present Paper makes a number of proposals as to how the Kyoto Protocol and investment protection objectives could be reconciled and even reinforce each other.

Environmental Interests in Investment Arbitration

Author: Flavia Marisi

Publisher: Kluwer Law International B.V.

Published: 2020-01-24

Total Pages: 297

ISBN-13: 9403517301

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Environmental Interests in Investment Arbitration Challenges and Directions Flavia Marisi Economic growth, social inclusion, and environmental protection stand at the core of sustainable development, which aims to deliver long-term growth for current and future generations. Foreign Direct Investment (FDI) can play a key role in sustainable development. Host states’ benefits descending from FDI inflows include tax revenues, technology transfer, specialised training of local human resources, network with satellite activities, better availability of quality products and customer-centric services. These downstream effects jointly stimulate economic growth and social inclusion. This thoroughly researched book explores the relationship between environmental protection – the third component of sustainable development – and FDI. In practice, the intersection between environmental protection and foreign investment not only has generated remarkable success stories such as cross-sectoral green investment but has also in some instances led to severe cases of environmental degradation. Certain foreign investments resulted in open-pit mines leaking harmful substances into the soil, excessive deforestation, improper treatment of water, pollution of groundwater and contamination of mud pits following oil exploitation, leaving the host state with significant environmental damage. Some other cases have witnessed the host state withdrawing or infringing its own environmental policies, which could, in principle, lead to a decrease in the value of the foreign investment as a result of natural resources deterioration. In recent years, an increasing number of investment arbitration cases have seen a clash between the states’ commitments towards their citizens, which include the duty to protect the environment, their health and well-being, and the commitment towards foreign investors to protect their investments. In this book, the author focuses on investor-state cases in which environmental protection measures have been contested and discusses substantive mechanisms in treaty drafting, rules of Customary International Law, and interpretation doctrines, which are aimed at taking environmental concerns into consideration. The topics covered include the following: statistical analysis of investor-state cases where environmental protection measures have been contested; the role of environmental principles in investor-state arbitration; treaty mechanisms addressing environmental concerns; legal tools available under Customary International Law to address environmental interests; the application of the doctrines of proportionality, police powers, and margin of appreciation; and environmental counterclaims as an instrument to claim compensation for environmental damage. The author provides a detailed framework on the normative architecture, offers an extensive analysis of the relevant case law, and proposes concrete solutions to the identified clashes, aimed at refining the balance between environmental and investment protection. With its in-depth analysis and careful documentation, this book aptly captures the inherent fragmentation of international law and undoubtedly represents an invaluable resource for both international law practitioners and scholars. The solution-oriented approach adopted in the book will be welcomed by legal counsel, law firms, investment treaty negotiators, and decision makers at the different stages of investment lawmaking and practice, as well as by international institutions and academics.

Bridging the Gap Between International Investment Law and the Environment

Author: Yulia Levashova

Publisher:

Published: 2016

Total Pages: 0

ISBN-13: 9789462365872

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This book addresses the topical question on how national and international environmental concerns could be adequately integrated into international investment law. It covers the question whether international investment law restricts state sovereignty in an unacceptable way - in particular, the freedom of host states to develop national policies and regulation for the improvement of the environment. The book first analyzes the interaction between international investment law and the protection of the environment, on the basis of concepts such as sustainable development, fair and equitable treatment, and international responsibility. Secondly, several chapters discuss challenges which are encountered in attempts to integrate environmental concerns in investment policies in specific sectors and regions (e.g. climate change, water pollution, renewable and nuclear energy, and the European Union region). And, finally, specific case studies illustrate the legal and policy tensions between investment law and environmental protection, namely Vattenfall's disputes with Germany, legal clashes between Chevron and Ecuador, and multinational mining companies' conflicts in Indonesia. The contributions are written by international experts and will be of interest to policy makers and practitioners. *** Librarians: ebook available (Series: Legal Perspectives for Global Challenges - Vol. 4) [Subject: International Law, Investment Law, Environmental Law]