Examining the role of transnational environmental initiatives in incorporating environmental values into international investment law
The investor-state environmental disputes arise from foreign investors’ claims against the environmental measures of host states. Environmental protection regulations implemented by host countries could adversely affect investment activities and reduce their prospected revenue. International investment Agreements (IIAs) entitle investors to bring cases against host states and submit them to international investment tribunals. In these cases, the tribunals need to govern investor-state environmental disputes based on applicable laws. Applicable laws governing the disputes, therefore, are of paramount importance to determine whether environmental measures of host states are legitimate. They could impose obligations on host states to protect investor rights. In contrast, applicable laws could allocate responsibilities on investors to manage investment-associated environmental issues. Applicable laws in investment-state disputes are international laws required by international investment tribunals. Applying international laws to investment tribunals is a distinctive method to integrate non-commercial values into IIAs. For instance, by taking international environmental law into account, the tribunal could consider environmental issues throughout investor-state environmental dispute procedures. However, the application of international laws directly conflicting with investor rights, which are established by IIAs and supposed to be protected by host states, would be rather unrealistic from the perspective of international investment arbitrations. Leaving aside the existing conflict between applicable international laws and IIAs, I am interested in investigating the relevance of Transnational Environmental Initiatives (TEIs) concerning environmental management within the investment sector, as applicable law for investor-state environmental arbitration. Through addressing this question, I will propose a new set of norms that not only could be considered as a potential source of applicable law, but also are internally coherent with IIAs’ components.