How to Include Environmental Protection, Human Rights and Sustainability in International Investment Law?

in The Journal of World Investment & Trade
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The analysis takes a closer look at the options available to include non-economic issues in the provisions of something like an emerging eu model bit. The first part addresses some underlying reasons for the more recently visible policy shift in international investment law. The subsequent parts are devoted to a discussion of three different categories of regulatory means aimed at incorporating broader public interest concerns into the normative framework of investment agreements. In this connection, the second part provides some thoughts on respective indirect (interpretative) approaches. Subsequently, an assessment will be given of various regulatory options available to explicitly secure an appropriate policy space for host states based on so far rather uncommon stipulations in investment agreements. The fourth section discusses the competence of the treaty parties to exercise interpretative authority over their bits and the potential importance of this approach in the present context.

The Journal of World Investment & Trade

Law • Economics • Politics

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9

European Parliament, supra note 7, paras. 27 et seq.; see also, for example, European Parliament, supra note 8, paras. 8 and 12; as well as from a broader perspective European Parliament resolution of 25 November 2010 on human rights and social and environmental standards in international trade agreements (2009/2219(ini)) <www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2010-0434> (5 March 2014).

106

Spears, supra note 54, p. 1045; see also Alessandra Asteriti, ‘Waiting for the Environmentalists: Environmental Language in Investment Treaties’ in R. Hofmann and C. Tams (eds.), International Investment Law and Its Others (Nomos 2012) 117, 154: “Environmental provisions in investment treaties are a relatively new addition in these instruments, and the case law has not developed yet for us to be able to assess what normative value they have and if they are going to influence the way in which tribunals deliver their awards.”); August Reinisch, ‘Austria’ in Chester Brown (ed.), Commentaries on Selected Model Investment Treaties (oup 2013) 15, 21 (“It remains to be seen whether the mentioning of non-economic goals in bit preambles will have an actual impact on the interpretation of bit standards.”

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