Chapter 8: Environmental exceptions, indeterminacy and legal principles
Chapters 5 and 6 have schematically ordered arguments and solutions according to two basic and seemingly opposed approaches; that is, the internal and the systemic. Significantly, the majority of both internal and systemic approaches have concretely resolved the issue by considering, at least in theory, non-commercial purposes such as environmental protection in interpreting investment rules. Against this background, a legal pattern of critical importance is increasingly being consolidated around the concept of exception as an autonomous integrative solution, as shown in Chapter 7. It may be seen, at the same time, as a possible model of the synthesis of internal and external integrative arguments. However, as foreshadowed in the previous chapter, there remains a vast grey area around the concept and role of exceptions in IIL. Different potential scenarios may be conjectured as to the legal ways in which investment regimes might evolve in the future as regards the consideration of environmental and human health concerns. In the following section three possible evolutions of the matter are outlined. The first scenario would embrace fragmentation as an organizing principle. In fact, state and arbitral practice remain fragmentary because an internal interpretative approach prevails. Tribunals often integrate environmental concerns into major investment principles, but without establishing a coherent practice and with few references to international non-investment rules and principles. The state of necessity defence, allowing the consideration of emergency environmental situations that strongly affect the life and health of populations, is invoked in a limited number of cases.
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