"Environmental Protection in International Investment Arbitration: From" by Diane A. Desierto
 

Environmental Protection in International Investment Arbitration: From Defenses to Counterclaims

Document Type

Book Chapter

Publication Date

2022

Publication Information

in The Environment Through the Lens of International Courts and Tribunals 325 (Edgardo Sobenes, Sarah Mead, & Benjamin Samson eds., 2022).

Abstract

This chapter examines how environmental protection has been invoked as basis for host State defences against investor claims, host State counterclaims against investors, and as a separate ground for investor claims against host States all with relative degrees of success before investor-State arbitration tribunals. When invoked in these ways as a key substantive ground for legal defences, claims, and counterclaims, environmental protection poses issues of interdisciplinary complexity for tribunals when it comes to evidentiary assessment, the standard of diligence and precaution required of States as well as non-State actors, and the concurrent interaction of States' environmental protection obligations with their investment treaty obligations . While investor-State arbitration may (and should probably) not be the court of first resort to achieve environmental protection, it should also not be seen as the court of last resort when it comes to producing sound, competent, and credible adjudication that is mindful of the role of scientific expertise, public regulatory concerns, and desired environmental outcomes. At the very least, the jurisprudential record examined in this chapter provides some qualitative evidence of the feasibility of investor-State arbitration as an adjudicative process, capable of accommodating various scientific, fact-finding, expert-driven, and interdisciplinary methodologies towards resolving questions raised by either host States or investors concerning environmental protection.

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