Published 31 January 2023
In this piece, we consider the possible claims under the FPS standard arising from Climate Events, and conclude that while given their novelty such claims may face obstacles and initial reluctance from arbitral tribunals, it is certainly conceivable that they could succeed. From a legal perspective, in particular, one can envisage challenges for investors around establishing causation, sufficiently concrete loss and a failure by States to meet the (sometimes relatively low) standard of "due diligence" thus discharging their responsibilities under FPS. However, none of these elements appear insurmountable were the right facts to arise and an investor to have appetite to seek to enforce its treaty rights under an FPS provision.
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