Environmental Interests in Investment Arbitration: Challenges and Directions

International Arbitration Law Library Volume 51

Environmental Interests in Investment Arbitration examines the legal framework for environmental interests in investment law, with the purpose of reaching a balance between the protection of foreign investments and the protection of the environment. 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, and these downstream effects 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 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 wellbeing, and the commitment towards foreign investors to protect their investments. 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.

What’s in this book:

The topics covered include the following:

• statistical analysis of investor-State cases where environmental protection measures have been contested;
• role of environmental principles in investor-State arbitration;
• treaty mechanisms addressing environmental concerns;
• legal tools available under Customary International Law to address environmental interests;
• 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.

How this will help you:

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. Providing an articulate framework of the available legal instruments and identifying the ways to reconcile the potential clash of the protection of private and public interests, the solution-oriented approach adopted in this 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.