Abstract

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.

Citation (Oxford)

Catarina Milo, ‘Environmental and Human Rights Justifications in Investment Arbitration: Probing the Limits of ISDS for the Adjudication of Climate-Related Disputes’ Journal of World Investment & Trade (2025).