Edited by Kate Miles
Chapter 5: Combating climate change through the promotion of green investment: from Kyoto to Paris without regime-specific dispute settlement
Given that the wording, interpretation and application of existing investment protection treaties are hardly conducive to the contemplation of legitimate environmental objectives, this chapter puts forward several alternative drafting proposals for future treaties and investment contracts. Negotiators of a follow-up instrument to the Kyoto Protocol could include a dispute resolution mechanism for disputes related to climate change projects, while future international investment agreements could incorporate social, environmental and human rights provisions and investment contracts could stipulate a hierarchy of potentially conflicting norms. The restrictions of the international rules on treaty interpretation when it comes to the interfield interaction of standards are evident, but could be addressed through the concept of ‘interpretative context’ and the ejusdem generis principle. Finally, arbitral tribunals are encouraged to take a climate change project-friendly approach and consider objectives beyond the investment context. Under these conditions, both the promotion and protection of climate change investments as well as green policies of States could be mutually reinforced.
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