INTRODUCTION

Amid the controversies surrounding investment arbitration, the single most salient criticism is probably that of a perceived impairment of sovereign States’ power to legislate in highly sensitive public interest areas such as human rights, human health, the environment or the energy transition, including so-called ‘procedural chill’. Testament to the extent of what can be described as investment arbitration's crisis are the many attempts at inserting and/or strengthening responsive substantive provisions in investment protection agreements, including the recognition of environmental protection as a treaty objective, the right of States to regulate environmental matters, or the continuing duty of States to enforce and promote environmental protection measures. These attempts have been thoroughly described,but they do not appear to have remedied the situation, atleast not to a sufficient extent.

Climate change considerations, although they may not have been as present in actual disputes so far, are more or less directly relevant to all these highly sensitive public interest areas: climate change may have adverse impacts on human rights, health, the environment or the energy transition. Conversely, a ‘climate litigation’ trendrelies on a wide array of legal bases, including increasingly human rights and fundamental rights, in an attempt to trigger stronger responses from public authorities and from the private sector. Indeed, substantive provisions relating to climate change have also been considered in the context of investment protection treaties, such as the 2018 Netherlands Model Bilateral Treaty according to which ‘Contracting Parties reaffirm their obligations under the multilateral agreements in the field of environmental protection …, such as the Paris Agreement’. Yet the prospects for international arbitration of climate-related disputes are hardly doubtful and have already been established.4