Abstract

In this Anthropocene Age and highly globalized interconnected world, States and Foreign Investors have competing interests that complicate the present Global War on Climate Change, as the number of foreign investment disputes associated with the environment and Climate Change has recently grown. As arbitrators have a broader discretion in interpreting Fair and Equitable Treatment (FET) in International Investment Agreements (IIAs), enforcing States' sustainable development goals, such as Climate Change, while protecting foreign investments is challenging. This article aims to dissect the nature of the FET as a substantive feature of IIAs and whether the existing IIAs adequately meet the Climate Change goal as State's environmental regulation in International Investment State Arbitration (IISA). Through the lens of Philip Jessup’s Transnational Law, it is theorized that Transnational Investment State Arbitration regime created the path for State to fulfill its obligatio erga omnes to advocate for its foreign investment and Climate Change goals by re-configuring Fair and Equitable Treatment (FET) provisions in IIAs.

This paper will be part of the second 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