Foreign Investment and the Environment in International Law: The Current State of Play
Jorge E. Viñuales, ‘Foreign Investment and the Environment in International Law: The Current State of Play’, in Kate Miles (ed.), Research Handbook on Environment and Investment Law (Cheltenham: Edward Elgar, 2016), chapter 2., Forthcoming
Posted: 22 Sep 2015
Date Written: September 17, 2015
This chapter provides an up-to-date view of the relationship between the international law governing foreign investment and environmental protection, covering developments until August 2015. The analysis is based among others on a dataset of 114 investment cases with environmental components compiled by the author. The chapter describes three main trends: (i) the increasing role of private investment in sustainable development instruments, particularly the 2030 Agenda for Sustainable Development and the Addis Ababa Action Agenda, (ii) the increasing reference to environmental considerations in IIAs, particularly FTAs, and mega-regional agreements, and (iii) the surge in investment disputes with environmental components in the last four years. It then turns to the legal analysis of several recent cases, including Unglaube v. Costa Rica, Clayton and Bilcon v Canada, Spence v. Costa Rica, Mesa v. Canada and Perenco v. Ecuador. The main conclusion is that environmental considerations are increasingly normalised or mainstreamed in the reasoning of investment tribunals, which in turn requires a full integration of environmental law in transactional, pre-litigation and litigation practice relating to foreign investment law.
Keywords: investment law and environmental law, 2030 Agenda for Sustainable Development, Addis Ababa Agenda, FTAs and megaregionals, Clayton and Bilcon v. Canada, Perenco v. Ecuador, environmental counterclaims
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