Who Cares About the Environment in the Context of Investment Arbitration?
By Laura Létourneau-Tremblay, Researcher, MultiRights/PluriCourts and Maxim Usynin, Research Assistant, PluriCourts
On 5-6 November, PluriCourts hosted a Symposium on the ‘Present and future role of investment treaty arbitration in adjudicating environmental disputes’. Scholars and practitioners were invited to share their views on whether and how international investment and environmental law can be supportive and mutually complementary in ongoing arbitral disputes. This question is timely when the number of international investment agreements (IIAs) is on the rise and concerns for sustainable development, climate change and green economies are increasing. The traditional critique of investment arbitration is that it has been inflexible to the amount of regulatory autonomy granted to states hosting foreign direct investment. These concerns have only escalated in recent years with the ongoing negotiations of the Transatlantic Trade and Investment Partnership (TTIP) agreement, and the changing landscape of the European legal framework for foreign direct investment.
Central themes discussed related to the balance between international investment law and its interaction with state’s regulatory powers as well as public international law and constitutional law perspectives on investment treaty arbitration. More specifically, sustainable impact assessments were presented as a potential tool for the European Union in measuring the tensions between international investment protections and sustainable development objectives, a practice already established in many trade-related negotiations. The integration of environmental impact assessments in IIAs was also discussed as an instrument to promote better cooperation between parties. A possibility for tribunals to offer more deference to states when interpreting protection granted to investors in relation to measures motivated by environmental considerations was also considered. Such an approach could offer a better balance between states’ commitments to investors and environmental protection.
Three presentations were submitted by PluriCourts scholars. Drs. Daniel Behn and Malcolm Langford presented their research on the process of “greening” of investment arbitrators. The growing concern of decision-makers over environmental objectives was identified on the basis of a quantitative analysis of investment cases, collected as part of the PluriCourts Investment Treaty Arbitration Database (PITAD). Maksim Usynin presented his study of PV solar investment cases within the EU context, concluding on the chilling effect of investment arbitration on the development of renewable energy policies. Laura Letourneau-Tremblay presented her research on the Bilcon case, stressing the tribunal’s scrutiny of Canada’s environmental impact assessment procedures. All presentations were followed by heated academic discussions.
The Symposium concluded on a positive note suggesting that both regimes are becoming more and more supportive.