Abstract

Recent years have brought increased criticism of investment arbitration as a form of dispute settlement. In particular, several high-profile cases concerning renewable investments and environmental counterclaims have provoked much debate about the need for reform and/or alternatives to this method of dispute resolution. 
However, although there have been increasing numbers of claims or counterclaims based on environmental protection or climate change in other fora, to date, this has not been met with much success in the context of investor-State dispute resolution. 

This article considers that bringing these claims (or counterclaims) as part of investment treaty proceedings entails overcoming significant jurisdictional barriers. This article further considers the requirements needed to show the existence of a protected investment or a protected investor could act as a hurdle to potential investment claims based on environmental and climate change. This article also examines whether the requirement that a counterclaim be within the scope of the consent of the parties is becoming less of a hurdle than it was before. 

This paper will be part of the fourth 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