In Need of a Paradigm Shift: Reimagining Eco Oro v Colombia in Light of New Treaty Language


States are somehow stuck in a tension between going further and faster with legislation targeting environmental protection, as well as climate adaptation and mitigation, but also ensuring that they fully meet their legal obligations under international investment agreements (IIAs). This tension prompts the question whether reformed IIAs can address this challenge and secure the necessary policy space for States’ environmental and climate change related regulations. This question is explored by rewriting the Eco Oro v Colombia majority decision in the specific context of the minimum standard of treatment (MST) using a reformed treaty as a legal basis. Such a ‘rewriting’ exercise aims at envisaging the full potential of reformed treaty language for more balanced outcomes. Overall, clarifications to MST may assist States in reasserting a certain degree of control over the interpretation of their treaties. But more than piecemeal change is certainly needed to achieve a deeper paradigm shift in the international investment system.