The evolving language of environmental protection in bilateral investment treaties, free trade agreements, and trade promotion agreements
Abstract
This chapter surveys the use of the word 'environmental' in BITs, FTAs (other than NAFTA), and TPAs, not only in terms of how and where mention occurs in the treaty/agreement text, but also identifying those disputes whose tribunal deliberation specifically took into account references to environmental concerns in a particular treaty/agreement, thereby providing some basis for assessing the impact these treaty/agreement references to environmental concerns may have had on tribunal decision making.
The first part of this chapter looks at references to 'environmental' in BITs, followedby similar discussion of FTAs and TPAs. The sequencing in each part is chronological, showing how treaty/agreement provisions have been evolving. Since mention of the word 'environmental' in the Preambles of Bilateral Investment Treaties dating back to the early 1990s, references to environmental concerns have increasingly been incorporated into the articles of the treaties and agreements. The inclusion here of information about relevant disputes and tribunal deliberations and awards is highly relevant to making a realistic assessment of the impact of the inclusion of treaty/agreement language concerning environmental issues.There are indications that the pendulum is swinging away from Tribunal rulings favoring investments at the expense of environmental protection to more balanced rulings which take note of greater mention of environmental concerns in treaties and agreements.
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