The Israeli judiciary is characterized by a paradox: it lacks formal protection in law but it is strongly independent in practice. Israeli law does not grant independence to the judicial branch yet it does grant broad regulatory authority to the Minister of Justice and to the Parliament, which could discontinue the courts’ operations by a simple majority vote. The solution to this complexity is the creation of decentralized regulation of judges’ behaviour. Decentralized regulation is conducted both internally and externally, and its external workings are distributed among three separate bodies: the Minister of Justice, the Knesset and the Ombudsman, with the latter a fully independent body.
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Katharina Kummer Peiry, Andreas R. Ziegler and Jorun Baumgartner
J. Anthony VanDuzer
International investment law seeks to promote predictability and stability in host state regimes by protecting investors and, as a result, encouraging them to invest. State initiatives to address climate change necessarily involve changes to those regimes. This chapter explores how climate change initiatives can conflict with basic investor protection guarantees found in virtually every investment treaty. It then describes how some recent treaties give host states more flexibility to adopt climate change measures. Finally, this chapter examines recent investor-state arbitration cases in which investors are seeking compensation for losses they have suffered when states renege on commitments intended to encourage investment in climate change mitigation, such as feed-in-tariff (FIT) rate guarantees. These cases illustrate how the stability in host state regimes resulting from investment treaties might support rather than undermine climate change initiatives, although at the cost of host state flexibility to respond to changes in energy demand, fuel prices, and budgetary and other pressures. Overall, much work is needed to adapt investment treaties to the distinctive features of the relationship between climate change and investor protection if they are to support climate change mitigation.
Thomas Cottier and Tetyana Payosova
Climate Change mitigation and adaptation is not limited to specialized instruments of international law based upon the United Nations Framework Convention on Climate Change (UNFCCC). It will increasingly bear upon international trade regulation within the World Trade Organization (WTO) and in preferential trade and investment agreements. The chapter develops the linkages between climate change and trade, taking recourse to the principle of common concern; which provides the proper foundation to address collective action problems in the field. Different from public goods or the principle of common heritage of humankind, common concern of humankind offers the foundations, but also the limitations, of unilateral action addressing climate change mitigation. The chapter discusses the status and use of production and process methods (PPMs) which increasingly move at the heart of international trade regulation and the analysis of like products. Methods of clean production of goods and services are key to addressing climate change and can be properly framed within the emerging principle of the common concern of humankind.
This chapter deals with climate change and trade, from the perspective of the normative interaction between common but differentiated responsibilities (CBDR) and the World Trade Organization (WTO) regime. In this vein, the chapter first examines the content and legal status of CBDR in international law, reaffirming the obvious, i.e. that CBDR does not enjoy independent legal status under international law. Then, the discourse turns to examine whether it is somehow 'inherent' in WTO law, still cautioning against overstating the relevant impact of either the reference to the objective of sustainable development in the Marrakesh Agreement’s Preamble, or that of the WTO rules on special and differential treatment (S & D) for developing countries. Given the fact that CBDR lacks independent legal status in international law, the chapter addresses the question whether CBDR, as reflected or operationalized via provisions of multilateral environmental agreements (MEAs), such as those of the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol, may still be resorted to in WTO dispute settlement for climate change measures. Distinguishing between using MEA provisions reflecting/operationalizing CBDR in a WTO dispute settlement, either as applicable law, or as an interpretative tool, the chapter concludes that CBDR's pertinence in WTO disputes is rather overstated, insofar as the interaction between CBDR and WTO law should be neither framed as a tale of two 'interconnected worlds', nor a tale of two 'crossing swords'.
Ludivine Tamiotti and Daniel Ramos
Global concerns over the effects of GHG emissions on the climate has led to important developments in climate change policies. As a result, several different policy paths at national and regional levels might be adopted to address the issue, including through the use of trade-related mechanisms. Such paths might give rise to concerns regarding their effectiveness and potential consequences for different economies. The concluding chapter joins the debate around the issues addressed throughout the book by presenting the institutional role the WTO can play to promote the mutual supportiveness between international trade and climate change. Three principal institutional roles are outlined: as a binding legal system that regulates its members' trade interactions and which includes a dispute settlement resolution mechanism; as a framework through which WTO members are engaged in a peer-review of each other's trade policies; and as a negotiating forum in which members exchange views, opinions and ultimately negotiate ways to further their trade relations. The concluding chapter discusses such institutional roles and explores how the WTO offers a framework for its members to address the trade issues that may arise when adopting measures aimed at climate change mitigation.