Environmental and Human Rights Justifications in Investment Arbitration: Probing the Limits of ISDS for the Adjudication of Climate-Related Disputes

This article examines the capacity of investment arbitration to analyze cases concerning complex issues of public international law, focusing on the challenges connected to climate-related cases. Through the analysis of arbitral awards involving environmental and human rights justifications, this article evaluates ways in which non-economic arguments may be effectively raised in investor-State dispute settlement (ISDS) and the extent to which arbitral tribunals may consider them. It is shown that ISDS adopts a binary approach; since tribunals focus primarily on investors' rights, non-economic interests are only relevant for being either in favor or against investment protection. A further consequence of this binary approach is that, in cases where multiple non-economic interests are involved, i.e. cases of 'triangulation', ISDS is ill-equipped to balance competing non-economic interests and, therefore, to handle the complexities of climate-related disputes. This raises concerns about the role of ISDS in addressing cases involving broader issues of public interest.