The Co-Existence of Mitigation and International Investment Law


While States are re-casting their contemporary international investment agreements (IIAs) to take into account measures to address climate change vis-à-vis investment protections, a large network of older or less ‘green-friendly’ IIAs exists which contain no reference to the environment or climate change. These less green-friendly IIAs may be interpreted as limiting the extent to which States can implement measures to mitigate the effects of climate change. This article examines the police powers doctrine, the prevention principle and, briefly, the precautionary principle to identify their current treatment in IIAs and investment law jurisprudence, and practical considerations to limit the risk of inconsistency between mitigation measures and obligations under less green-friendly IIAs.