The suitability of investor‐State dispute settlement and host State counterclaims for implementing climate change international responsibility

Abstract

AbstractThis article examines the suitability of investor‐State dispute settlement (ISDS) for implementing international responsibility arising out of breaches of climate change obligations, based on a comprehensive review of literature, international decisions and instruments, with a particular focus on counterclaims by host States in ISDS arbitral proceedings. ISDS may prove suitable for these purposes, notably by virtue of the flexibility and hybridity of ISDS arbitral proceedings and the enforceability of ISDS arbitral awards. The flexibility of ISDS results in procedural frameworks more adaptable than other forms of international dispute settlement. The hybridity of ISDS, combining both internal and international legal rules, provides grounds for climate change claims or counterclaims not afforded by national or international law operating separately. And crucially, notwithstanding limitations inherent in the ad hoc nature of ISDS, the enforceability of ISDS arbitral awards furnishes unparalleled opportunities to effectively implement international responsibility for breaches of climate change obligations.