Published 8 January 2024
This paper aims to contribute to the growing discussions of how to integrate international environmental obligations into international investment law mechanism ('ISDS'), by looking at the issue from a theoretical perspective. This paper discusses the conceptualisation of renewable energy foreign investment as an intermediate global public good and climate change mitigation as both a global public good and a global common. It also probe into the role of international investment arbitration in providing global public goods and protecting global commons.
This paper demonstrates that, compared with the literature on public goods in international law generally, the literature regarding public goods in international investment law is more monopolistically state-centric. While this preference in the literature reflects the ultimate guardian position of the host state in protecting domestic public goods against foreign investors, it does not depict a genuine picture of the state's role in providing public goods and protecting global commons. When dealing with 'aggregate efforts goods', Bodansky and Barrett suggest that states are often not incentivised to undertake obligations to provide or protect them, as from a rationalist perspective the cost of participation is less than the benefits that could be gained. Ideas such as 'aggregate efforts goods' highlight the need to view environmental protection through a constitutionalist lens that emphasises the importance of common values of mankind for all actors in international law. Therefore, current investment law literature that mainly focuses on the state's role in safeguarding global commons and providing global public goods overlooks the deficiencies of states' efforts and the possible contributions of non-state actors, such as renewable energy investors, and the obligations these non-state actors may have under international law.
The paper aims to address the concepts of global public goods and global commons in international law, including their origins in economics literature, their connections to international law and the role of ISDS under these frameworks, with the hope to add to the current discussion of how international environmental concerns could be better addressed in ISDS.
Footnotes omitted from this introduction.
This paper will be part of the third 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