Groningen Journal of International Law

International Law Under Construction


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The Conflicting Relationship between Bilateral Investment Treaties and Environmental Law in Ghana

Dr Dominic Dagbanjadominic.dagbanja@uwa.edu.au

Introduction

The duty of states to protect the environment is not just a matter of municipal law, it is also reflected in international treaties like the International Covenant on Economic, Social and Cultural Rights and the African Convention on Conservation of Nature and Natural Resources and in international declarations.

The duty to protect the environment is fulfilled through the implementation and enforcement of environmental laws and regulations. As Philippe Sands and other scholars pointed out, one of the challenges facing environmental law is the difficulty of enforcement, particularly where environmental protection objectives come into conflict with economic interests. The Commission for Environmental Cooperation of North America (CECNA), for instance, argued that environmental regulations may run afoul of bilateral investment treaties (BITs). The CECNA also pointed out that conflict with BITs is one of the reasons both national environmental law and international environmental law rules suffer from inadequate domestic implementation. The United States Trade Representative similarly noted that while “securing a stable investment climate and a level playing field for […] investment abroad is an important objective […], arbitral claims brought by investors against governments (through “investor-State” arbitration) could be used inappropriately to challenge […] domestic laws and regulations, including those concerning the environment.” Continue reading


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The Mauritius Convention’s Entry Into Force: High Hopes with Little Impact?

By Erica Duffy, University of Groningenericaduffy10@gmail.com

There is a current trend in investor-State dispute settlement (ISDS) towards ensuring more transparent and open proceedings. This development is a direct response to the backlash in recent years from civil society, who often considers investment arbitration to lack legitimacy. One such initiative to increase transparency in ISDS are the UNCITRAL Rules on Transparency, which were adopted in order to provide for a straightforward mechanism for States to apply consistent standards in investor-State proceedings. The UN Convention on Transparency in Treaty-based Investor-State Arbitration (“The Mauritius Convention on Transparency”) will soon enter into force. The Convention makes the UNCITRAL rules compulsory for BITs and trade agreements with investment chapters that have been concluded in the past, thus, having the potential to simultaneously amend thousands of international investment agreements. In the first two years of its existence very few countries seem willing to ratify or even sign the Convention.  Continue reading