Enhancing Environmental Protection In International Investment Law Through The Integration Of International Civil Liability Principles

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The need to rebalance the IIA program is particularly obvious in the field of environmental security. Investment activities can result in significant environmental damage in the host state. This piece explores the way the incorporation of international civil liability concepts into IIAs may be accomplished. To do so, it first sets out relevant international civil responsibility principles that may be included. Secondarily, it analyzes the various tools available for such incorporation. Such conventions create a homogeneous system of rules on liability that must be used and enforced by the expresses celebrations at the nationwide level, through the enactment of the required implementing legislation.

= $ a definition is provided by =p>The conventions,” which, in most recent treaties, requires the adoption of preventive measures as well as procedures of reinstatement of the damaged environment. They channel liability for harm through the “operator,” that is, the legal or natural person in control of the ultra-hazardous activity. Liability is strict, that is, it is imposed regardless of the operator’s fault, and is at the mercy of exemptions.

Liability is bound in amount or time, or both. The operator must obtain sufficient insurance or provide other financial security. The courts are identified by The conventions with jurisdiction over compensation claims and the applicable law. In general, international civil liability conventions experienced low rates of ratification and entry into force.

However, where in fact the relevant convention did enter into push, the application of the concepts listed above has been particularly successful in ensuring settlement to the victims. This reinforces the theory that international civil liability principles could play a more substantial role in ensuring liability and facilitating compensation for environmental damage. The incorporation of international civil responsibility principles into IIAs could grant the host condition and its residents yet another and powerful guard against the undesireable effects caused by harmful economic activities of international investors.

In practice, incorporation could happen in three different ways, discussed in the sections below. With respect to the description of “investment” relevant for the purpose of attaching responsibility to the trader, this will coincide with the definition of covered “investment” under the IIA. This might allow avoiding the risk of restricting liability to investments in certain activities, while at exactly the same time omitting certain dangerous activities to which no responsibility would connect equally. For example, IIAs could incorporate the provisions of certain international civil liability conventions relating to the adoption of preventive or reinstatement measures.

In this case, the buyer would be asked to set up all necessary preventive measures to avoid serious and imminent threat of environmental damage caused by its investment activity in the sponsor state. If environmental harm has recently occurred, the investor would instead be asked to take all necessary and practicable methods to lessen, contain or take care of the harm and restore the environment to its original condition. In both instances under a.

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IIAs may be redundant, especially when similar provisions are contained in the host state’s local laws and the appropriate IIA provides for the investor’s responsibility to adhere to the domestic law of the host state. However, straight including such responsibilities in IIAs may still prove useful where local legislation does not actually contain similar obligations, or in instances where the transboundary character of the investor’s activities or framework hinders effective access to environmental remedies. As the inclusion in IIAs of environmental investor obligations or procedures imposing responsibility on traders for environmental damage is-at least theoretically-straightforward, the incorporation of yet another tier of compensation in IIAs may be harder to achieve.

From a theoretical perspective, there is no general, natural incompatibility between your principles regulating civil liability regimes and IIAs. IIAs developed by scholars. Therefore, these advancements could further be powered, to strike a more equitable balance between trader security and environmental concerns of the host state. In practice, however, the incorporation might be harder to accomplish. Alessandra Mistura is a Ph.D.

Graduate Institute of International and Development Studies, where she is focusing on the integration of sustainable development in international investment regulation. This piece is based on a wider analysis carried out by the author in Mistura, A. (2019). Integrating Civil Liability Principles into International Investment Law: A Solution to Environmental Damage Due to Foreign Investors? L. Sachs; L. Johnson & J. Coleman (Eds.), Yearbook on International Investment Law and Policy 2017. Oxford: Oxford University Press, pp. Churchill, R. R. (2002). Facilitating (transnational) civil liability litigation for environmental damage by means of treaties: improvement, problems, and potential customers.

For example, Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty on Liability Arising from Environmental Emergencies. International Oil Pollution Compensation Funds (IOPC Funds). Annual Report 2017, p. 17. London: IOPC Funds. UNCTAD. (2018). UNCTAD’s reform package for the international investment routine. 09-03-2018.pdf; IISD. (2018, April). Integrating buyer obligations and commercial accountability provisions in trade and investment agreements. December 3, 2016, Art. SADC model bilateral investment treaty template with commentary, Article 21. Gaborone: SADC. Model text message for the Indian bilateral investment treaty. Mann, H., von Moltke, K., Peterson, L. E., & Cosbey, A. (2005). IISD Model international agreement on investment for sustainable development: negotiators’ handbook.