This article provides an initial assessment of the ECT-based arbitration risk flowing from the COP 26 pledges due to their impact on fossil fuel investments in ECT contracting parties. It further estimates how these impacts could translate into investor–state arbitration claims based on past and ongoing cases in the energy sector.
ICSID tribunals fail to address the imbalance between sustainable development principles and investment protections
The importance of linking sustainable development and FDI has garnered increasing attention in recent years, and IIAs increasingly include sustainable development provisions. However, the architecture and functioning of the investment regime make application of these standards difficult.
There have been more than 150 known ISDS cases brought by claimants whose business involves extracting, transporting, refining, selling, or burning fossil fuels for electricity. The authors, Kyla Tienhaara, Lise Johnson, and Michael Burger explore the question of how valuation and damages in fossil-fuel related investment claims should be approached in light of climate change considerations and the contested value of fossil fuel resources.
The Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation: A model to steer international law toward renewable energy investments and the low-carbon transition
In this piece, the author analyzes the Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation (“TSI”), winner of the Stockholm Treaty Lab prize. First, she presents the TSI as a model that states could adopt to foster international investment in the transition from carbon-intensive to low-carbon energy systems. Second, she comments on some challenges in implementing the TSI model and propose possible improvements in this regard. Third, she analyzes how the TSI could be used to improve current and future bilateral investment treaties (BITs).
Negotiations for modernizing the Energy Charter Treaty, a 1994 agreement covering trade, investment and other aspects of the energy sector among its contracting parties, are expected to begin before 2019 draws to a close. Yet given the need identified in myriad other forums to reform ISDS and to ensure trade and investment agreements can support ambitious climate action, why aren’t more officials and commentators discussing the possibility of terminating the ECT entirely, or of reconsidering its survival clause for those parties which choose to withdraw? Tania Voon explores the issue and outlines options going forward.
The Revised Draft of a Treaty on Business and Human Rights: Ground-breaking improvements and brighter prospects
This past July, the chairperson of a working group tasked with negotiating an international treaty on business and human rights circulated an updated draft text for consideration in the fifth round of negotiations, to be held October 14–18, 2019 in Geneva. This document features a series of innovations, including extending the scope of the treaty beyond transnational organizations to include all business enterprises, along with bringing much needed clarity on how this treaty might interact with the wide range of trade and investment agreements already in place. Carlos Lopez describes these innovations in detail, showing their changes relative to the “zero draft” and outlining how they may affect upcoming negotiations.
This book analyzes the tension between the host state’s commitment to providing regulatory stability for foreign investors and its commitments to its citizens with regard to environmental protection and social welfare.
IISD is releasing an e-book summarizing and analyzing 10 treaty-based investor–state arbitration cases decided in the 2010s. The cases are relevant to a range of issues relating to sustainable development, including environmental protection, socio-environmental impact assessment, renewable energy, taxation, corruption and human rights.
In May 2018, the Dutch Ministry of Foreign Affairs published its new draft model bilateral investment treaty (BIT), in hopes to foster rethinking of existing and future Dutch BITs. Will this revised model achieve this goal, or does it fall short of the promised policy reset?
The paper seeks to make an important contribution to the international investment debate by highlighting particular desirable characteristics of FDI, outlining how these can be promoted and encouraged, and providing guidance so that national and international efforts in investment law and policy contribute fully to the achievement of these goals.
Integrating Sustainable Development in International Investment Law: Normative incompatibility, system integration and governance implications
This book presents an important systematic study of the issue of sustainable development and international investment law, using conceptual, normative and governance perspectives to explore the challenges and possible solutions for making international investment law more compatible with sustainable development.
This book shows how the current reform in investment regulation is part of a broader attempt to transform the international economic order.
This book focuses on the Asia–Pacific region, delineating the evolving dynamics of foreign investment in the region.
International Investment Law and Policy in Africa: Exploring a human rights based approach to investment regulation and dispute settlement
This book provides a comprehensive analysis of the international investment law regime and current treaty practices in Africa from global, regional and domestic perspectives.
The European Union and Japan announced on July 6, 2017 that they reached an agreement in principle on the main elements of an Economic Partnership Agreement (EPA).
Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5
This report examines whether and how investment tribunals consider community perspectives, interests and rights.
On December 2, 2015, the European Union and Vietnam signed a free trade agreement (FTA), closing three years of negotiations.
The book examines the links between investment law and other sub-fields of international law, including the law on armed conflict, human rights, sustainable development, trade, development and EU law.