Investors as Environmental Guardians? On Climate Change Policy Objectives and Compliance with Investment Agreements

This article studies the relevance of environmental obligations, in particular those related to climate change, in assessing breaches of investment agreements to show that investors may foster compliance with climate change policy objectives through investment arbitration. The article is organized in four parts, following an introductory section. First, preliminary issues stemming from the submission of environmental claims and arguments in investment arbitration will be addressed. This point is addressed with regard to jurisdiction and applicable law. Second, the study focuses on how the environmental arguments may be used by claimants in investment arbitration. It is shown that they may be relevant both under a factual and an interpretative perspective. Third, evidentiary differences relating to the use of environmental arguments in investment arbitration is examined. Lastly, concluding remarks are made as to the potential benefits for investors in raising climate change-related arguments in investment arbitration