ISDS: A Way Forward, Brussels, 27 May 2015 ISDS and ...isdsblog.com/wp-content/uploads/sites/2/2015/06/Andrina-ISDS-Sustainable-Dev-.pdfISDS and SustainableDevelopment ISDS: A Way

ISDS and Sustainable Development

ISDS: A Way Forward, Brussels, 27 May 2015

Sukma Andrina, SCC Legal Counsel

• Does ISDS hamper the power of government to regulate for

environmental protection?

• Can ISDS be used to support environmental protection?

Questions to think about…

• By the end of 2014: 356 decided ISDS cases (UNCTAD)

• 21 decided cases related to protection of the environment and

public health (see www.italaw.com)

Putting numbers into perspectives

• Types of challenged measures: restrictions on dangerous

chemicals, imposition of environmental requirements, rejection of

permits etc.

• Types of industries: eco-tourism, manufacturing etc.

• Tribunals did not question the power of governments to regulate

for environmental protection.

• In cases where States were found liable, it was because States

had done wrong under terms of the treaty.

Research findings

• S.D Myers v. Canada

• Methanex v. USA

Example Cases

Recent claimants in ISDS

• Solar panel investors

• Wind power investors

• Owner of natural sanctuary

• More investment in is needed to combat climate change

(renewable energy, energy efficiency, sustainable agriculture).

• International environmental law is not enough.

• IIAs can be turned into a proactive tool in support of sustainable

development, ISDS as effective enforcement mechanism.

Looking forward: ISDS for sustainable development

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