Research Handbook on Environment and Investment Law
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Research Handbook on Environment and Investment Law

Edited by Kate Miles

The Research Handbook on Environment and Investment Law examines one of the most dynamic areas of international law: the interaction between international investment law and environmental law and policy. The Research Handbook takes a thematic approach, analysing key issues in the environment–investment nexus, such as freshwater resources, climate, biodiversity, biotechnology and sustainable development. It also includes sections which explore regional experiences and address practice and procedure, and offers innovative approaches and critical perspectives, including the interface between foreign investment and the environment with human rights, gender, indigenous peoples, and economics.
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Chapter 5: Combating climate change through the promotion of green investment: from Kyoto to Paris without regime-specific dispute settlement

Freya Baetens

Abstract

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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