Paxus LLP is proud to present “Reconciling Human Rights and Investor Rights: The Case of Climate Change” by Founder and Principal, Suzanne Spears, in Investment Arbitration and Climate Change (Anja Ipp and Annette Magnusson, eds).
The book and Suzanne’s chapter address the perceived tension between, on the one hand, states’ obligations to reduce greenhouse gas emissions and avert catastrophic climate change and, on the other, states’ commitment to provide foreign investors with a stable and predictable legal framework, without which investments needed to address climate change might not materialize. State efforts at climate change mitigation and adaptation have already triggered claims of liability under the investor-protection provisions of bilateral and multilateral investment treaties, and more claims are coming.
Suzanne’s chapter explores the tools available to arbitral tribunals to reconcile investor protections with climate-related human rights obligations. She explains that, in addition to the investment treaty itself, tribunals are generally authorized to apply other relevant rules of international and national law and to consider transnational public policy. Owing to new scientific insights and a growing awareness of the risks posed by climate change, human rights law is evolving to require states to take climate mitigation measures. That law may be relevant to a tribunal when, for example, it is determining whether an investment is protected; assessing the reasonableness of host state conduct; assessing the legitimacy of investor’s expectations; interpreting investment treaty provisions; determining whether the police powers doctrine applies; identifying essential interests of the respondent state; or determining the proper standard for assessing compensation. Tribunals, therefore, have opportunities to shape investment law in a manner that coheres with human rights law, and to balance investors’ rights, human rights, and a stable climate system.
Congratulations to the editors, Anja Ipp and Annette Magnusson, on the publication of this timely book and to all the other contributors. Also many thanks to the editors for inviting Suzanne to write on such an important topic and to the Wolters Kluwer team for supporting the project.