Published 17 January 2023
The potential clash between the protection of the foreign investment and the environment has been frequently seen in the investment arbitration cases over the years. In several cases, the respondent State has tried to rely on the precautionary principle to justify its cautious approach in adopting the challenged environmental and climate change mitigation measures. The precautionary principle might be used as a useful tool for the States to defend their regulatory measures by leaving the States with wider policy space, particularly when the cases involve complex and uncertain scientific questions. However, current literature seldom touches upon the application of this principle in investment arbitration cases. This article seeks to fill this gap by providing an overview of how the investment arbitral tribunals have approached this principle. This article seeks to answer the following questions: what does the precautionary principle mean; how the tribunals have interpreted and applied such a concept? More specifically, under what circumstances it can be successfully invoked, and what are the effects of its application.
This paper will be part of the TDM Special Issue on "International Investment Arbitration - Environmental Protection and Climate Change Issues". More information here https://www.transnational-dispute-management.com/news.asp?key=1893