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 10: The use of science in environment-related investor-state arbitration

Jacqueline Peel

Abstract

Questions regarding the assessment of scientific evidence, and the legal standards to be applied, have preoccupied international adjudicators across a wide array of forums considering environmental disputes, most notably the WTO in disputes under the Sanitary and Phytosanitary (SPS) Measures Agreement. Investor-state arbitrations over environment-related regulatory measures often raise similar questions about the appropriate use of science as have been seen in the WTO SPS case law. As investor-state arbitrations gather pace in the environmental field, we can expect questions over the role of science to become more prominent, as they have in other international dispute settlement fields. This chapter takes stock of scholarly discussion and existing practice regarding the use of science in environment-related investor-state arbitrations. Consideration of emerging practice in international investment law in the context of approaches taken in other areas of international dispute settlement provides a basis for identifying likely future challenges and evaluating proposed approaches.

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