A Failure in Adaptation: Reduction to Losses in Climate Related Investment Treaty Disputes
Published 7 February 2023
Can an investor be held to be contributorily negligent or at fault for its loss by failing to account for the legal and political impacts of anthropogenic climate change? This article considers that an arguable case can be hypothetically made in the affirmative. Before reaching that conclusion, this article takes stock of current trends in climate disputes, both domestic and international, and particularly in the context of investor-State dispute settlement (‘ISDS’). It considers the principles of contributory negligence and fault, and their application to ISDS proceedings in the context of climate disputes. Analysis of Professor Philippe Sands KC’s partially dissenting opinion in the Bear Creek case considers how that case may provide some insight into the future of climate-related ISDS disputes.
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