This chapter analyses a range of materials, including a dataset of 117 investment cases with environmental components compiled by the author, and derives from them three main trends: (1) the increasing role of private investment in sustainable development instruments, particularly the 2030 Agenda for Sustainable Development and the Addis Ababa Action Agenda; (2) the increasing reference to environmental considerations in IIAs, particularly FTAs; and (3) the surge in investment disputes with environmental components in the recent past. The main conclusion is that environmental considerations are increasingly mainstreamed in the reasoning of investment tribunals, which in turn requires a full integration of environmental law in transactional, prelitigation and litigation practice relating to foreign investment law.
Jorge E. Viñuales
This chapter analyses the implications of contemporary international investment law for the regulation of natural resources. Natural resources are unevenly distributed across different regions and countries and that makes access a very important question. In turn, access to resources located in the territory or within the jurisdiction of a country and, more generally, any activities conducted in connection with such resources, are subject to the regulatory powers of the host State. Although such powers are above all a matter of sovereignty, understanding them through this prism alone would miss an important point, namely that the interests of a host State and a foreign investor may be aligned not only in pursuance of public welfare but also to the detriment of it. The latter phenomenon has been called the ‘resource curse’ – i.e. a situation where a rapacious government exploits the country’s natural resources for its own benefit depriving the population of its due. Foreign investors may be involved in such phenomenon either deliberately (i.e. through a close connection with the rapacious government) or as a mere result of their activity in the host State (i.e. by making the exploitation profitable for the government irrespective of any explicit complicity). Thus, questions of 'access', 'sovereignty' and 'distribution' are closely interrelated in ways that require sustained analysis. The first section of the chapter provides a brief overview of the basic architecture and building blocks of international investment law, from a structural and dynamic perspective. The focus then turns to the core subject matter, namely the specific implications of this body of law for the governance of natural resources, particularly as regards access, sovereignty and distribution. In conclusion, some observations and recommendations regarding possible avenues for reform are put forward for consideration and future research.