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Addressing Environmental Concerns Arising in Investor-State Dispute Settlement with Special Emphasis on the Indian Approach

Author(s): 
Chitransh Vijayvergia
G. Nikhita Hari
Page Count: 
34 pages
Published: 
August, 2021
Jurisdictions: 
International,
India
Practice Areas: 
Investment Disputes,
States as Parties,
Basic Standards of Due Process,
Third Parties in Arbitral Proceedings,
Responsibility of Parties,
Enforceability,
Arbitral Decisions,
BITS,
Costs and Damages
Tags: 
Investor-State Dispute Settlement (ISDS),
FET,
Environmental Disputes,
Test of Proportionality,
Environmental Impact Assessment,
Police Powers,
Indirect Expropriation,
Legitimate Expectation,
Margin of Appreciation Doctrine,
Counterclaims,
Amicus Curiae Submission
Author Detail: 

Chitransh Vijayvergia is an Associate (Litigation and Dispute Resolution) at Panicker & Panicker Advocates, Kochi. He is a Batch of 2020 Graduate, B.A. LLB (Hons.) from the National University of Advanced Legal Studies, Kochi. The views expressed in this article are those of the author alone and do not necessarily represent the views of Panicker & Panicker Advocates. For any discussion related to this article, the author may be approached at chitransh.vijay@outlook.com. 

G. Nikhita Hari is a Graduate, B.A. LLB (Hons), Batch of 2020 from The National University of Advanced Legal  Studies, Kochi. She is an Advocate, enrolled with the Bar Council of Telangana, India and is an Associate at The Law Chambers, Hyderabad. The views and opinions expressed in this article are the author’s alone and should not be attributed to The Law Chambers, Hyderabad. For any discussion on this article, the author may be approached at nikhitaguduru97@gmail.com.

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Description: 

Originally from the American Review of International Arbitration (ARIA)

ABSTRACT

An overwhelming number of investment disputes in the last two decades have involved environmental considerations, but has Investor-State Dispute Settlement since evolved to address them? In light of the contemporary development of both environmental and investment law, this paper explores their interaction and their conflict in order to answer this question. The paper first identifies the ways in which environmental considerations enter investment disputes and classifies them into three categories based on the nature of the obligations and the party aiming to enforce them. A deconstruction of the legal intricacies of these categories is followed by an exploration of the methods used to resolve these conflicts viz. the efficacy of tribunals using the doctrines of police powers and margin of appreciation to balance conflicting obligations. The paper also examines the potential use of counterclaims as a tool for host-States to hold an investor responsible for the environmental damage caused, as well as the role played by the third parties who are affected by the negative environmental effects of an investment in imposing liability on the parties. The paper then gives a brief analysis of the Indian approach to sustainable investment, scrutinizing the India Model BIT currently in use. In conclusion, a range of suggestions and solutions addressing the abovementioned aspects as well as other issues on the matter are put forth with the bright hope of a more sustainable future for investment law.