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 12: Does the green economy need investor-state dispute settlement?

Kyla Tienhaara

Abstract

In the past decade, the ‘green economy’ has become an increasingly important, albeit contested, concept in international policy discussions. While investment law has not figured prominently in these discussions, a number of commentators have made the claim that investor-state dispute settlement (ISDS) could help facilitate the transition to a green economy by supporting renewable energy investment. In this chapter, the theoretical basis for such a claim is evaluated and several ISDS cases concerning investments in wind energy (Canada) and solar power (Spain) are discussed. The chapter concludes that even if one adopts a very narrow conception of a green economy, the case for ISDS to play a positive role in its development is weak. There is little evidence to suggest a constructive role for ISDS in theory, and in practice the need for wind and solar investments to receive special protection from investment treaties is limited and declining.

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