Frosch, Annika; Giemza, Wojciech; (2023) Current trends in the investment environmental jurisprudence and predictions for investment disputes involving climate change. Transnational Dispute Management , 20 (1)

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Abstract

A constantly increasing number of international investment disputes involve the environment. Respondent States try to justify their regulatory activity by invoking environmental concerns and regulations. According to investment law scholarship, there is a growing trend of recognizing environmental protection in arbitral decisions regardless of the treaty wording, which might suggest the change occurred in arbitrators' mindsets. Nevertheless, international investment law and environmental law continuously appear to be irreconcilable. Climate change is a common concern of humankind requiring immediate joint action of the whole global community on all levels in the form of mitigation and adaptation. States introduce significant regulatory changes to achieve these goals, including cutting carbon emissions. These sweeping measures will inevitably interfere with numerous branches of the economy and give rise to investment disputes. International law on climate change develops as an increasingly particular field of international environmental law. Until recently, climate change and its law have been absent in investment legal doctrine and jurisprudence. This article presents whether and how these specific rules and principles may find application before arbitral tribunals in the expected investment disputes concerning climate change. While forecasting the trends in investment disputes with environmental components known to date, it will be explained how these trends will play out in the future.

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