Environmental crisis, climate change and sustainability have been widely seen as the most urgent challenges of our time. In response to climate change, there has been significant action undertaken by States around the world. It can be expected that there will be a further pressure to act more if States seek to transition to low carbon, sustainable and green economies while ensuring access to secure and affordable energy in light of the UN Sustainable Development Goals (SDGs). In the meantime, it is essential for foreign investors to address the potential impacts of a low carbon transition and damages associated with climate change policy in the future.
To what extent international investment treaty and investor-state arbitration can contribute to, not undermine, climate change and sustainability would be a major topic from climate change-related perspectives. Some new investment treaties have incorporated commitments on sustainable development or high levels of environment. In some cases, foreign investors are also required to conduct responsible business in the host states.
However, on the other hand, there has been a growing concern that international arbitration, in the form of commercial arbitration and investor-state arbitration, may potentially serve as a new forum for climate change-related disputes. As practiced, a rising number of treaty claims to date have been concerned with investments in renewable energies, such as solar, wind and hydropower. There have been around 40 claims against Spain under the Energy Charter Treaty following Spain’s change of its renewable energy policies (e.g. Charanne v. Spain, Eiser v. Spain, Isolux v. Spain, Novenergia v. Spain.) It is anticipated that in the coming years, using international arbitration to address climate change disputes is likely to continue and become more globalized.
Against the above background, this semester, we will look at the issues on investment protection in the age of climate change.
Tentative topics to be discussed are as follows.
I. International Investment Treaties and Environmental Protection/ Climate Change/Sustainability
1. UN Sustainable Development Goals (SDGs), Climate Change and Investment
2. The Salience of Investment Protection under Investment Treaties
3. An Introduction to Investor-State Treaty Arbitration
4. Special Considerations on Environmental Protection/Climate Change/Sustainability under Investment Treaties
II. Investor-State Arbitration, Disputes and Procedure: Environmental Protection/ Climate Change/Sustainability
5. Involving Investor-State Arbitration for Climate Change Challenges through Green Investment
6. An Ethical Rule in International Arbitration for More Climate Friendly Proceedings
7. Role of Environmental Principles/SDGs in an Investor-State Arbitration
8. Environmental Counterclaims for Environmental Damages in an Investment Dispute
9. Renewable Energy Disputes, the Energy Charter Treaty (ECT) and Sustainable Development
III. The Future of Investment Treaties in the Times of Climate Change/Sustainability
10. New Innovations for Climate-Positive and Sustainable Development Provisions: A Trend for Future Free Trade Agreements
11. Socially and Environmentally Responsible Investment, Corporate Responsibility and Obligations under Investment Treaties
12. The Future for the Energy Charter Treaty (ECT) in times of Climate Change: Reform or Termination?
13. Will International Investment Court be a Suitable Alternate for Climate Change-related Disputes?
IV. Negotiation Simulation Exercise
Students will be divided into several groups as country representatives/delegates, presenting a proposal for discussion in negotiation simulation exercise. The draft topic will be prepared by the instructor. Country’s proposals shall be well-prepared and sent to all participants at the latest prior to 3 days before class.