Environmental Impact Assessment in Investment Disputes: Method, Governance and Jurisprudence

Abstract

Environmental Impact Assessment (EIA) is an instrument of environmental governance that ensures that the environmental implications of decisions are taken into account before the decisions are made. As such, environmental impact assessment constitutes the legal response to risk management needs and an integral component of sound decision making. However, a series of recent investment treaty claims have questioned the methodology, i.e. the way of conducting EIA. This article critically assesses this recent jurisprudence, and questions whether, instead of representing a cause for dispute, EIA can constitute an effective dispute prevention mechanism. If so, this article shall investigate the way this integration can take place, with reference to the World Bank’s practice.

Keywords: EIA, arbitration, environmental impact assessment, Pulp Mills, Saramaka, ICSID, NAFTA

JEL Classification: K33