Published 19 December 2022
(Minor revisions 21/12/2022) This paper considers the interpretation of environmental clauses found in investment treaties and provides an overview of the gradual emergence of various types of environment-related provisions across the investment legal framework.
The inclusion of express environmental language is a fairly recent development, having become more common from the mid-1990s onwards. Although environmental treaty provisions are far from being the main tool to promote and protect sustainable development and environmental goals, these concerns are being increasingly reflected in investment agreements. This paper briefly discusses several distinct types of environmental provisions, including: i) exception clauses; ii) preambular provisions; iii) clauses discouraging States from relaxing environmental standards; iv) procedural provisions; v) ISDS-related provisions, vi) performance obligations provisions; vii) environmental harm provisions; and finally, viii) promotion of environmental protection and cooperation clauses.
The analysis then turns to the question of how arbitral tribunals have approached environmental protections and the interpretation of investment treaties in this regard. The starting point in the interpretation of treaties is the Vienna Convention on the Law of Treaties (VCLT). This paper considers both Article 31(3)(c) and Article 31(3)(b) of the VCLT, considering respectively i) the principle of systemic integration of environmental protections into treaties, and ii) State practice that might be regarded as shedding light on the meaning of treaty provisions relating to the environment.
This paper will be part of the TDM Special Issue on "International Investment Arbitration - Environmental Protection and Climate Change Issues". More information here www.transnational-dispute-management.com/news.asp?key=1893