Abstract

International investment agreements (IIAs) are at the heart of international investment law which aims at protecting contracting parties' prospective investors and the investments. The earlier IIAs (known as first generation IIAs) are embroiled with the criticism that host states' policy space for public purposes including environmental concerns has been considerably restricted under these IIAs, particularly, through the investor-state dispute settlement (ISDS) threats which may require the host states to pay foreign investors large amount of compensation for violation of treaty obligations.

These growing discontents have prompted the states to undertake reform initiatives in this area. One of such reform initiatives is the adoption of new generation of IIAs which aim at addressing the gaps and criticisms of the first generation IIAs. Under these newer treaties, a number of environmental provisions are incorporated.

However, it is uncertain how the arbitral tribunals are going to use and interpret these provisions in absence of any concluded arbitral decisions in this regard. Accordingly, this study intends to examine the nature and potential effectiveness of these provisions in addressing the environmental concerns of the host states. The study finds that due to certain apprehensions raised herein, the usefulness of these environmental provisions in bringing about material changes remains doubtful.

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