Combating climate change through the promotion of green investment: from Kyoto to Paris without regime-specific dispute settlement

Abstract

When the Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC) entered into force in 2005, it formed one of the first international agreements that specifically aimed at enlisting private actors (most often foreign investors) to set up green development projects in order to achieve its objective: greenhouse gas (GHG) emissions reduction. However, no corollary dispute settlement mechanism was included that would allow for a field-specific solution to potential conflicts. Instead, such disputes would have to be argued before domestic courts for whom international agreements would at best be seen as part of the background of a dispute but not as the applicable law. At the international level, these cases could be brought before investor-State tribunals whose jurisdiction would be based on international investment agreements, with little maneuvering room for environment-based argumentation. The Kyoto Protocol was designed to expire in 2012, but was provisionally extended until 2020. In 2015, the Conference of the Parties to the UNFCCC reached consensus on a new treaty to reduce greenhouse gas emissions: the Paris Agreement. This paper first provides an overview of the advantages and disadvantages of the existing climate change regime with regard to private green investment projects, before analysing the negotiations in this respect leading up to the Paris Agreement, as well as the Agreement itself. As the Paris Agreement does not address the existing dispute resolution challenges, recourse in the case of disputes at the international level will remain in the hands of investor-State arbitral tribunals. For this reason, the paper evaluates the climate change objectives in the context of investment protection standards as incorporated in investment treaties. Next, a number of illustrative contract-based as well as treaty-based investor-State disputes concerning ‘green’ investment projects are examined, followed by a brief prognosis for the outcome of future disputes. Finally, this paper offers suggestions for contract and treaty drafters to remedy the existing lack of regime-specific dispute settlement mechanisms for green private investment projects, using the treaty interpretation rules.