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ID:
139153
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| Summary/Abstract |
This article analyzes how International Investment Agreements (IIAs) might constrain the ability of governments to adopt climate change measures. This article will consider how climate change measures can either escape the application of IIA obligations or be justified under exceptions. First, this article considers the role of treaty structure in preserving regulatory autonomy. Then, it analyzes the role that general scope provisions can play in excluding environmental regulation from the scope of application of IIAs. Next, this article will consider how the limited incorporation of environmental exceptions into IIAs affects their interpretation and application in cases involving environmental regulation. The article then analyzes non-discrimination obligations, the minimum standard of treatment for foreign investors and obligations regarding compensation for expropriation. This analysis shows that tribunals can exclude environmental regulation from the scope of application of specific obligations as well.
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| 2 |
ID:
160105
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| Summary/Abstract |
In two early WTO cases, the Appellate Body found a failure to engage in negotiations to be arbitrary or unjustifiable discrimination under the GATT Article XX chapeau. Subsequent jurisprudence has not applied a negotiation requirement. Instead, it analyzes whether discrimination is arbitrary or unjustifiable by focusing on the cause of the discrimination, or the rationale put forward to explain its existence, which would exclude a duty to negotiate in many circumstances. The issue of whether there is a duty to negotiate is a systemic issue for international economic law. The Article XX chapeau language appears in other WTO agreements and in other international economic law treaties, including those that address environmental protection, regional trade and international investment. This article argues that there is no such duty in WTO law.
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