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Investment Arbitration and Environmental Protection: Irreconcilable Interests or Mutual Adaptation?
Eastwood, Sophie
Eastwood, Sophie
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yjil_49_7-ocr.pdf
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Abstract
The growth of investment arbitration has led to an increasing number of investor-State disputes in which private business investments collide with public interest laws. These include actions whose principal purpose is to uphold environmental protections. This Article examines the tensions that arise from œtates’ attempts to reconcile their obligations under investor-State treaties with their domestic commitments to environmental and ecological protection. It argues for a fundamental reform of the investment treaty system along two connected tracks: firstly, to allow for expanded use of the precautionary principle in cases involving environmental harms; and secondly, and just as significantly, to systematize the inclusion of provisions in bilateral investment treaties (BITs) that allow States to bring counterclaims against investors whom they allege have caused environmental harm.