Entre L'arbre Et L'écorce (between a Rock and a Hard Place): Can International Commercial Arbitration Deliver on Environmental Disputes?

Abstract

In this chapter, the author asks whether bona fide concerns in respect of the impact of private rule-making on the management of natural resources and State regulation of the environment risk is being ignored if a narrow approach is taken to commercial arbitrations involving such matters. The chapter highlights that commercial arbitration is bound by certain inherent limitations that make it a distinct form of dispute settlement. Judge Mensah's wisdom is once again apropos in understanding the importance of this point. Upon the conclusion of the UNCLOS, Mensah said in respect of the so called purists who argued that the dispute settlement regime under the Convention did not have enough teeth that, while this proposition may be true, it is equally true that anything more radical would probably not have been acceptable to many of the States that have now accepted the 1982 Convention and its dispute settlement regime.. Keywords: dispute settlement regime; environmental disputes; International Commercial Arbitration; natural justice; State regulation; UNCLOS