Foreign Investment and the Environment in International Law

Conflicts between foreign investment law and environmental law are becoming increasingly frequent. On the one hand, the rise of environmental regulation poses significant challenges to foreign investors in several industries. On the other, the surge in investment arbitration proceedings is making States aware of the important litigation risks that may result from the adoption of environmental regulation. This study of the relationship between these two areas of law adopts both a policy and a practical perspective. It identifies the major challenges facing States, foreign investors and their legal advisers as a result of the potential friction between investment law and environmental law and provides a detailed analysis of all the major legal issues on the basis of a comprehensive study of the jurisprudence from investment tribunals, human rights courts and bodies, the ICJ, the WTO, the ITLOS, the CJEU and other adjudication mechanisms.

Introductory observations; Part I. Setting the Framework: 1. The increasing interactions between foreign investment law and international environmental law; 2. Conceptualising interactions; 3. Synergies; 4. Conflicts I - soft-control mechanisms; 5. Conflicts II - adjudication mechanisms; Part II. Normative Conflicts: 6. Normative priority in international law; 7. Foreign investment and the international regulation of freshwater; 8. Foreign investment and the protection of biological and cultural diversity; 9. Foreign investment and the international regulation of dangerous substances and activities; 10. Foreign investment and the climate change regime; Part III. Legitimacy Conflicts: 11. Normative priority between different legal systems; 12. Environmental measures and expropriation clauses; 13. Environmental measures and non-discrimination standards; 14. Environmental measures, stability and due process; 15. Defence arguments based on environmental considerations; Concluding observations.

Jorge E. Viñuales is the Pictet Chair of International Environmental Law and Assistant Professor of Public International Law at the Graduate Institute of International and Development Studies, Geneva. He is also the Director of the Programme on Institutions for Sustainable Development at the Centre for International Environmental Studies.