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Home > Journal > Advance publication

Climate Change and the Territoriality of International Investment Agreements

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W.J. Simonsick
W.J. Simonsick

Published 20 January 2023

Abstract

Climate change, potentially the greatest threat of the 21st century to human societies, transcends political and legal boundaries. However, the operation of investor-state dispute resolution (ISDS) and its governing instruments has been intrinsically linked to those boundaries, boundaries that are a decisive factor in conferring consent to dispute resolution. In particular, the jurisdictional inquiry of territoriality, essentially a ratione loci, limits the application of treaty obligations to investments in the defined territory of a host state. Seemingly straightforward, a mixture of state succession issues and mixed treaty language practice in international investment agreements (IIAs) are responsible for a discourse unprepared for the negative externalities of climate change. This paper will analyze the ways in which climate change will challenge this current state of affairs, especially the ‘benefit test’ of IIA territoriality and the limits discussed in Bayview, and the potential need for new textual clauses and new tests to adapt to the trans-border nature of our changing 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

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Suggested Citation

W.J. Simonsick (2023, forthcoming) "Climate Change and the Territoriality of International Investment Agreements"
(TDM, ISSN 1875-4120) January 2023, www.transnational-dispute-management.com

"Advance publication" is the name given to material that is published ahead of its appearance in a regular structured issue of our Journal. It is also possible to monitor this via RSS. Subscribers will receive update alerts via e-mail of the published articles as soon as they have been added to the website.

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