The neglected public interest in investor-State dispute settlement: environmental and human rights considerations.

Nedeva, Stanislava ORCID: https://orcid.org/0000-0002-0067-1838 2024. The neglected public interest in investor-State dispute settlement: environmental and human rights considerations. European Energy and Environmental Law Review 33 (5) , pp. 214-231. 10.54648/eelr2024014

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Abstract

With the rapid expansion of bilateral investment treaties (BITs), investor-state arbitration has paved its way to becoming the most preferred dispute settlement method by investors. However, the investment arbitration system has also attracted ‘backlash’. One reason is the challenge to balance between protection of foreign investors and the recognition of host states’ legitimate public interests. With the current pressures to reform the investor-state dispute settlement (ISDS) system, there is a pressing need to offer a better balance between investor protection and host states’ sovereign right to regulate, as well as the wider public good such regulatory measures might have, especially in the context of environmental protection and human rights. This article argues for a better symmetry between foreign investor’s treaty-based claims and host states’ environmental and human rights (EHR) claims to acknowledge the public interests – social, economic, welfare, etc. In particular, it advocates for: the strengthened presence of independent experts and amicus curiae, a proportionality approach; and the overarching development of counterclaims as a consideration not only of the host state’s capacity to regulate but also the wider repercussions of such regulations on the public as well as the conduct of foreign investors.

Item Type:	Article
Date Type:	Publication
Status:	Published
Schools:	Cardiff Law & Politics Law
Subjects:	K Law > K Law (General) K Law > KD England and Wales
Publisher:	Kluwer Law International
ISSN:	1879-3886
Date of First Compliant Deposit:	21 August 2024
Date of Acceptance:	25 July 2024
Last Modified:	24 Oct 2024 14:13
URI:	https://orca.cardiff.ac.uk/id/eprint/170934

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