The book deals with the question whether the investment treaty law system could be harmonized with the climate change international legal framework and the climate interest that lies beyond. The answer to this research question is divided into three parts. The first examines the relevance of the climate change international legal framework in investment treaty disputes as a natural pre(logical)interpretative stage. The second focuses on the BIT’s content-interpretation, which is the orthodox approach to solve the fragmentation between the system of investment treaty law and the system of international climate change law. Finally, the third part tackles this fragmentation through a heterodox approach that is grounded in the direct application of climate change principles through law ascertainment. Apart from concluding that harmonization between investment treaty law and international climate change law is possible through the orthodox approach to the expropriation and the FET standards, as well as through the direct application of the climate change precautionary principle and the CBDRRC principle - heterodox approach, the book suggests that tribunals are expected soon to openly address climate change disputes in their rulings.
Author(s): Tomás Restrepo Rodríguez
Publisher: Springer
Year: 2023
Language: English
Pages: 347
City: Cham
Acknowledgements
Contents
Chapter 1: Introduction
1.1 Is This ``Deal´´ Really Working? Investment Treaty Disputes in a Warming World (the Context)
1.2 Is It Possible to Achieve Harmonization? Fragmentation of Contemporary Young Systems in the Same Context of Global Warming...
1.3 Shielding Harmonization from Arbitrariness: Reductionist Legal Positivism (Methodological Package)
1.4 Harmonization Within the Limits of the Operation of the Investment Treaty Law: Enhancing the Efficacy of the Global Climat...
1.5 Relevance, Content Interpretation, and Law Ascertainment in Investment-Treaty-Climate-Change-Related Disputes: Pre(logical...
References
International Legal Instruments
Part I: Relevance of the Climate Change International Legal Framework in Investment Treaty-Climate Change Disputes: Pre(Logica...
Chapter 2: Iura Novit Arbiter and the Application of the Climate Change International Legal Framework to Investment Treaty Dis...
References
Chapter 3: Formal Relevance of the Climate Change International Legal Framework in Investment Treaty Disputes: Defining the Sy...
3.1 Multilateralization of the Investment Treaty Law: Envisaging the Global Climate Interest in Investment Treaty-Climate Chan...
3.1.1 The Process of Multilateralization: Describing Investment Treaty Law as a Legal System That Regulates Community Interests
3.1.2 Criticism to the Definition Multilateralization: Understanding Community Interest as a Notion That Embraces the Global C...
3.1.2.1 Does the Operational Definition of Multilateralization Isolate the Investment Treaty Law? Understanding the Self-Refer...
3.1.2.2 Does the Functional Definition of Multilateralization Exclude International Global Interests from Investment Treaty La...
3.2 Syncretism of the Investment Treaty Law: Envisaging the Global Climate Interest in Investment Treaty-Climate Change Disput...
3.2.1 Distinguishing Multi(syncretic)lateralization from the Comparative Public Law Methodology: Allowing the Possibility for ...
3.2.2 Distinguishing Multi(syncretic)lateralization from (International) Public Law Substantive Validity Theories: Preserving ...
3.2.2.1 Identifying Van Harten´s Public Law Approach to Investment Treaty Arbitration as a Substantive Validity Theory That Is...
3.2.2.2 Syncretism as a Means to Preserve the Identity of the Investment Treaty Law in Contrast to the Public Law Substantive ...
3.2.3 Distinguishing Multi(syncretic)lateralization from Kulick´s Global Public Interest Theory: Reformulating the (Global) Pu...
3.2.3.1 The Eclecticism of the Global Public Interest Theory: Reinforcing the Thesis That the System´s Operation Is Characteri...
3.2.3.2 Reformulation of the (Global) Public Challenge Interest Stemming from Syncretism
3.2.4 Investment Treaty Arbitration as International Public Law: Revealing the Climate Change Legal Framework as Part of the I...
3.3 Concluding Remarks on Multi(syncretic)lateralization and the Formal Relevance of the Climate Change International Legal Fr...
References
Chapter 4: Material Relevance of the Climate Change International Legal Framework in Investment Treaty Law: Unveiling Climate ...
4.1 Economic Approach to the Relationship Between the Investment Treaty Law and the Climate Change Law: Framing the Conflicts ...
4.1.1 The Rationale of the Investment Treaty Law and Climate Change: Synergetic Relationship
4.1.1.1 The Momentum of the Climate Change Economy
4.1.1.2 The Particular Exposure of Renewable Energies Against Political and Regulatory Risks
Spain
Czech Republic
Italy
Bulgaria
4.1.1.3 Incentivizing Climate Investments Through Investment Treaty Arbitration Decisions: Law and Economic Reasoning
4.1.2 Regulatory Chill and Climate Change: Conflictual Relationship
4.1.2.1 Internalization Chill and Climate Change Measures
4.1.2.2 Threat Chill and Climate Change
Transcanada v. United States
Vattenfall [I] v. Germany
4.1.2.3 Transboundary Chill and Climate Change Measures
4.1.3 Considering the Economic Rationale of the Investment Treaty Law and the Risk of Regulatory Chill in International Invest...
4.2 A Sociopolitical Approach to the Relationship Between the Investment Treaty Law and the Climate Change Law: The Contributi...
4.2.1 The Investment Treaty Law System as Climate Change Governance: The Contribution of Global Administrative Law
4.2.2 The Incompatibility of Investment Arbitration Law with the Climate Change Legal Framework´s Objectives: The Contribution...
4.2.3 The Survival of the Investment Treaty Law and Epistemic Communities: Concluding Remarks on the Sociopolitical Approach t...
References
Decisions
International Legal Instruments
Part II: Gravitational Power of the Climate Change International Legal Framework over the Bit Content-Interpretation: Orthodox...
Chapter 5: The Orthodox Approach and the Sources of Law in Investment Treaty-Climate Change Disputes
References
Decisions
Chapter 6: Orthodox Approach to the Expropriation Standard in Investment Treaty-Climate Change Disputes: Determining the Breac...
6.1 Pliability of the Expropriation Standard in a Climate Change Context: Swinging Between the Sole-Effects Doctrine and the P...
6.1.1 The Temptation to Adopt the Police-Power Doctrine in Expropriatory Climate Change Disputes and Its Drawbacks: Exposing t...
6.1.1.1 The Insufficiency of the Police-Power Doctrine to Promote Climate Interest: Accusing the Police-Power Doctrine of Disi...
6.1.1.2 Inconsistency of the Police-Power Doctrine with the Text, the Purpose, and the Coherence of the Expropriation Standard
6.1.2 Adaptation of the Sole-Effects Doctrine to the Expropriation Standard in Expropriatory (Climate-Change-Related) Disputes...
6.1.2.1 Tailor-Made Clauses That Limit (or Exclude) the Application of the Sole-Effects Doctrine in Investment Treaty-Climate ...
Methanex-Inspired Standard
Tecmed-Inspired Standard
Investment-Backed Expectations
6.1.2.2 The Climate Change Context as a Limitation to the Sole-Effects Doctrine: Revealing the Need for Rebalancing the Invest...
6.2 Orthodox Approach to the (Ordinary) Expropriation Standard in a Climate Change Context: Tempering the Sole-Effects Doctrin...
6.2.1 (Dis)proportionality of the Impact on the Investor as a Common Basis for Expropriation: Demonstrating the Conformity of ...
6.2.2 Consistency of the Sacrificial-Lamb Doctrine with the Climate Change International Legal Framework´s Context: Bridging t...
6.3 The Limits of the Orthodox Approach to Promote the Global Climate Interest: Concluding Remarks on the Interpretation of th...
References
Decisions
International Legal Instruments
Chapter 7: Orthodox Approach to the Fair and Equitable Treatment Standard (FET) in Investment Treaty-Climate Change Disputes: ...
7.1 (Un)Reasonableness/(Dis)Proportionality in RESS Disputes: Discovering (Non)Capriciousness, (Un)Predictability and (In)Esse...
7.1.1 Polysemic Character of the Concepts of Proportionality and Reasonableness in RESS Disputes
7.1.2 Technical Definition of (Un)Reasonableness/(Dis)Proportionality: Unfolding the Concepts of (Non)Capriciousness, (In)Pred...
7.1.2.1 (Non)Capriciousness
7.1.2.2 (In)Essentiality and (Un)Predictability
Charanne (2007-2010)
Eiser, Novenergia, Antin (2007-2014)
Isolux and RREEF 2011-2014
7.1.3 Ambiguity of Specific Commitments and the Need for a Formal and Material Assessment of Essentiality: Concluding Remarks ...
7.1.3.1 Ambiguity of Specific Commitments: Restating the Consensus on the Rule That Informal Representations in Conjunction wi...
7.1.3.2 Material and Formal Modification to the Essential Elements: Assessing (In)Essentiality by Reference to the Reasonable ...
7.2 Generalisation of the Application of the Pattern of Proportionality/Reasonableness to all Investment Treaty-Climate Change...
7.2.1 The Determination of (Non)Capriciousness in FET Climate Change-Related Disputes: Underpinning the Standard of Arbitrarin...
7.2.1.1 Consistency of the High Threshold of (Non)Capriciousness by Reference to the Standard of Arbitrariness with Case Law a...
7.2.1.2 Consistency of the High Threshold of (Non)Capriciousness by Reference to the Standard of Arbitrariness with the Object...
7.2.2 (Un)Predictability and (In)Essentiality in FET Climate Change-Related Disputes: The Creation of Legitimate Expectations ...
7.2.2.1 Consistency of the De-Formalisation of the Representations with the Purpose of the FET Standard: Balancing the Host St...
7.2.2.2 Consistency of the De-Formalisation of the Representations with the Climate Change Context: Harmonising the Climate Ch...
7.3 The Rejection of the Public Law-Modeled (Interest-Weighing) Proportionality Test and the Limits of the Orthodox Approach: ...
7.3.1 The Drawbacks of a Public Law-Modeled (Interest-Weighing) Proportionality Test in the Interpretation of the FET Standard...
7.3.2 The Limits of the Orthodox Approach in FET Climate Change Disputes: Impossibility of Directly Applying Principles of the...
References
Decisions
Part III: Osmosis of the Global Climate Change International Legal Framework into Investment Treaty Law Through Law Ascertainm...
Chapter 8: Heterodox Approach and the Sources of Law in Investment Treaty-Climate Change Disputes
References
Decisions
International Legal Instruments
Chapter 9: Direct Application of the Precautionary Principle in Investment Treaty-Climate Change Disputes: Deploying the Inter...
9.1 The International Defence of Necessity in Investment Treaty-Climate Change Disputes: Article 25 of the DASR as a Rule to D...
9.1.1 The Recognition of Non-Economic Interests Within the Scope of Necessity in Case Law: Embracing the Necessity of Precauti...
9.1.1.1 Evolution of the Scope of Necessity in the Disputes Concerning the Argentinian Economic Crisis: Paving the Way for the...
9.1.1.2 Expansion of the Scope of Necessity in Investment Treaty Disputes Beyond the Argentinian Crisis Awards: Paving the Way...
Bernhard von Pezold v. Republic of Zimbabwe
Bear Creek Mining v. Peru (Dissenting Opinion)
9.1.2 The Adaptability of the Climate Change Precautionary Principle to the Conditions of Article 25 DASR: Adopting a Flexible...
9.1.2.1 The Climate as an Essential Interest: Encompassing Article 25 DASR with Global Common Interests
9.1.2.2 The Grave and Imminent Peril of Global Warming and Its Effects: Overcoming Scientific Uncertainty as a Barrier to the ...
9.1.2.3 The `Only Way for the State to Safeguard´ the Global Climate Interest: Adopting an Interpretation Within the Limits of...
9.1.2.4 The Non-Contribution to the Situation of Necessity: Adopting an Interpretation Within the Limits of Reasonability and ...
9.2 General Exceptions in Investment Treaty-Climate Change Disputes: Exploring the Absence of Breach of BIT Obligations When A...
9.2.1 The Conformity of Climate Precautionary Measures to the General Exceptions Stemming from the (Non)Relationship Between t...
9.2.1.1 Conformity of Climate Change Precautionary Measures to Clauses that Contain an Explicit Reference to Necessity in Thei...
9.2.1.2 Clauses that Embrace Climate Change Precautionary Measures When General Exceptions Are Not Linked to `Necessity´: Betw...
9.2.2 The Conformity of Climate Change Precautionary Measures to the Exceptions Stemming from the Range of Legitimate Objectiv...
9.2.2.1 Open Exceptions
9.2.2.2 Exhaustive Exceptions
9.3 Concluding Remarks on the Direct Application of the Climate Change Precautionary Principle to Investment Treaty Law Disput...
9.3.1 Independence of the International Defence of Necessity and General Exceptions in Investment Treaty-Climate Change Disput...
9.3.1.1 Harmonisation Through Different Operational Mechanisms: The Verification of General Exceptions Determines the Absence ...
9.3.1.2 Direct Application of Precautionary Climate Change Measures Through Article 25 DASR (Heterodox Approach) and the Confo...
9.3.2 The Counter Rationale of the International Defence of Necessity and the General Exceptions in Investment Treaty-Climate ...
References
Decisions
International Legal Instruments
Chapter 10: Direct Application of the Common But Differentiated Responsibilities and Respective Capabilities Principle (CBDRRC...
10.1 Suitability of the CBDRRC to the Practice of the Investment Treaty Law Tribunals: Demystifying the Full Compensation Prin...
10.1.1 Limitations to the Full Compensation Principle Arising from the Text of the (Ordinary) Expropriation Standard: Paving t...
10.1.2 Limitations to the Full Compensation Principle Arising from Secondary Rules: Confirming the Suitability of the CBDRRC t...
10.2 The Operationalisation of the CBDRRC in Investment Treaty-Climate Change Disputes
10.2.1 Exceptional Application of the CBDRRC in Investment Treaty-Climate Change Disputes: Topical Connection Between Investme...
10.2.1.1 The Instrumental Role of the Investor and the Effectiveness of the CBRDDC in Investment Treaty Law
10.2.1.2 The Cooperative-Liability Nature of the Investment Treaty Law and Climate Change Law
10.2.2 Translation of the CBDRRC Principle to Investment Treaty Law Through International Civil Liability Devices and Dynamic ...
10.2.2.1 Application of International Civil Liability Provisions that Represent the CBDRRC Principle to Investment Treaty Law:...
The Application of the Principle of Equity
The Polluter Should Pay
Article 27 (b) of the DASR
10.2.2.2 Dynamic Approach to the CBDRRC Principle in Investment Treaty-Climate Change Disputes: Differentiation Stemming from ...
10.3 Concluding Remarks on the Direct Application of the CBDRRC to Compensation: Inadequacy of a Global Public (Environmental/...
10.3.1 The Rejection of a Global Public (Environmental/Climate) Interest Defence to Modulate Compensation in Investment Treaty...
10.3.2 The Systematicity of the Exceptional Application of a Differential Approach to Compensation in Investment Treaty-Climat...
References
Decisions
International Legal Instruments
Chapter 11: Conclusions
11.1 Investment Treaty Law Is a Multi(syncretic)lateralized System that Comprises the Climate Change International Legal Frame...
11.2 Investment Treaty Disputes Comprise Climate Change Disputes that Stem from the Operation of the Investment Treaty Law (Ma...
11.3 The Sacrificial Lamb Theory in Investment Treaty-Climate Change Disputes Harmonises the Operation of the Expropriation St...
11.4 The Determination of the Proportionality/Reasonableness of Host State´s Measures in the Context of Global Warming Harmoni...
11.5 The Direct Application of the Climate-Change Precautionary Principle Through the International Defence of Necessity and t...
11.6 The Direct Application of the Common but Differentiated Responsibilities and Respective Capabilities Principle (CBDRRC) t...
11.7 Concluding Remarks: Reasons to Be Optimistic About the Harmonisation of the Investment Treaty Law and Climate Change Law
Reference
