International Investment Law and the Environment

This book addresses an issue of increasing importance in public international law: the controversial relationship between international investment law (IIL) and environmental protection. The inquiry underlying this book can be briefly summarized as follows: is it possible to reconcile foreign investor rights and environmental protection? Or more precisely: how and to what extent can environmental concerns be integrated into the strict logic of international investment rules? International practice raises more specific queries: is a state obliged to pay compensation for the indirect expropriation of foreign investments due to environmental regulations? Is it possible for a country to withdraw a foreign investor’s permit to carry out a dangerous activity without infringing the international standard of fair and equitable treatment? These questions, although quite simple in themselves, open the door to complex and multiform answers and solutions. Scholars studying the relevance of environmental and human health concerns in the context of IIL usually prefer to either address specific issues (e.g. regulatory expropriations, freezing clauses, etc.) or to limit their scrutiny to specific legal contexts (e.g. the North American Free Trade Agreement). Some scholars have focused on the matter more comprehensively by identifying points of friction between investment rules and environmental protection and by detecting or proposing various solutions. On the whole, the doctrinal approaches appear fragmentary, mirroring in essence the multiform nature of IIL (its multiple and autonomous sources create a kind of legal patchwork, which is only partially “unified” by the practice of arbitral tribunals) and all of these debates may be situated in the broader context of discourses on the fragmentation of international law. With this in mind, this book is not engaged in a search for the chimera of a single legal formula which radically resolves the antagonism between foreign investments and environmental concerns. Instead, it gathers and scrutinizes the legal arguments and solutions in arbitral case law and investment treaties around this inquiry. By extrapolating and ordering the insights from this vast and heterogeneous mass of available practice, the book outlines a possible method for reconciling investor rights and environmental concerns, which is centred around the model of legal exception. Finally, when discussing the relationship between rule and exception, it counters possible objections to the proposed model coming from theories affirming the indeterminacy of international law, by highlighting the role of legal principles according to the Dworkinian theory. More broadly, this attempt to analyse and order available arguments for integration and to sketch out an interpretative method has the purpose of not leaving this delicate matter to the mere discretion of arbitrators, according to a simple case-by-case approach. As such, this book essentially examines investment regimes and it is first and foremost a study of international investment law. Although other fields of international legal practice, such as certain human rights instruments, are also concerned with the foreign investments and environmental protection, the peculiarities of IIL, as a sui generis system of law with a marked influence on state sovereignty, suggest limiting the subject matter to experiences within this sector of international law. At the same time, comparisons with other fields of international law, in particular WTO law, provide crucial insights and are broadly employed to address the subject at hand. Moreover, this inquiry into the integration of environmental issues into the context of IIL may provide a paradigmatic model for the broader theme of integrating non-economic matters into the tissue of rules that protect foreign investments.