Sustainability Impact Assessments as Inputs and as Interpretative Aids in International Investment Law

Abstract

Sustainability impact assessments (SIAs) act as bridges between trade and investment agreements and social, environmental and human considerations. They are relevant as inputs into the treaty negotiation process and as interpretive aids in investment treaty arbitration. As inputs, SIAs attempt to measure the impact of environmental, social, economic and human rights aspects of trade and investment agreements prior to and during a treaty’s negotiation. SIAs have been performed on all major negotiations in the EU since 1999, and will continue to be performed under its investment competence. Case studies in this article demonstrate how SIAs may include climate change. Additionally, legal recommendations are offered which, if adopted by the Directorate General for Trade, should increase the effectiveness of SIAs. As interpretive aids, SIAs may be key references in treaty interpretation arguments in light of increased environment and development related investment disputes and focus on sustainable development policy space.

Addressing Climate Change through International Investment Agreements: Obstacles and Reform Options

“…There is increasing evidence that IIAs can contribute to mitigating climate change. This is possible when IIAs are drafted to incorporate provisions related to climate change and the environment [65]. This study, built on a thorough review of the literature and practice, analyzes the climate change-related arguments in investment arbitration and advocates for climate-oriented reforms in IIAs.…”