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On the 'sustainable' interpretation of investment treaty provisions

Ishikawa, T.; (2011) On the 'sustainable' interpretation of investment treaty provisions. Doctoral thesis, UCL (University College London).

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Abstract

The tension between the law on foreign investment and environmental concerns of host states has been increasingly recognised. There are circumstances where a host state's environmental measures result in the restriction of foreign investors' interests and a dispute between the affected investor and the host state reaches investment treaty arbitration. In such 'environment-investment' conflicts, there has been a tendency among arbitral tribunals to prioritise investors' interests over environmental concerns of host states. This thesis proposes a way to redress the existing Imbalance between the protection of foreign investment and environmental protection in investment treaty arbitration. It proposes 'interpretative linkage', that is. linking certain international environmental norms to investment treaties through the interpretation of investment protection provisions, as a means to seek a balance between them. This thesis focuses on the precautionary principle, the polluter pays principle and the principle of sustainable development as the former, and provisions on expropriation and the fair and equitable standard of treatment as the latter. This thesis first establishes the theoretical bases for interpretative linkage by examining: (i) the openness of the investment treaty arbitration regime towards 'external' international norms; (ii) the legal status of the three environmental principles and ways by which these principles may influence treaty interpretation; and (iii) certain interpretative rules that promote interpretative linkage. It then examines how expropriation provisions and the fair and equitable standard of treatment should be interpreted in the light of the three environmental principles where bona fide environmental measures are concerned. The central argument is that these principles, if used in the proper context in interpretative linkage, can be potent tools for achieving a shift towards greener interpretation and therefore contribute to more environmentally sensitive outcomes.

Type:Thesis (Doctoral)
Title:On the 'sustainable' interpretation of investment treaty provisions
Language:English
Additional information:Permission for digitisation not received
UCL classification:UCL > School of Arts and Social Sciences > Faculty of Laws

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