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Watching the pendulum swing: investigating changes in the scope and impact of provisions in investment treaties for securing environmental protection

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posted on 2022-03-28, 18:12 authored by Timothy James Webster
With the turn of the century, investment treaties began to address the potential for conflict between the introduction by governments of protective environmental measures and investors’ claims of intereference with their rights to fully exploit their investments, prompting claims for compensation over reduction in the profitability of their investments. This conflict reflects a tension between the public’s right to a safe environment, on the one hand, and investors’ rights on the other. Since the 1990s, this tug-of-war between those supporting investment protection and those advocating for a safe environment has been played out in the case law of courts and arbitral tribunals, as well as in the drafting of investment treaties and free trade agreements. While environmental provisions in recent agreements, such as NAFTA and Trans Pacific Partnership (TPP), have suggested the pendulum is swinging with greater force in the direction of the environment, nevertheless the potential for positive impact on the environment has continued to be hampered by both legal and linguistic expedients that prioritize economic growth over environmental concerns. The Investor-State Dispute Settlement (ISDS) provisions carried over into TPP from NAFTA allow foreign investors to challenge government measures related to environmental, health, and safety regulations which investors claim to violate treaty obligations into which the State willingly entered for investors’ protection. Moreover, with recent calls for the renegotiation of NAFTA and the US decision to withdraw from TPP, it may be the pendulum is swinging back in favour of economic over environmental concerns.


Table of Contents

Chapter 1. Balancing public and private interests -- Chapter 2. Speaking of ‘environmental’ in investment treaties and trade agreements -- Chapter 3. NAFTA : trend-setter or spoiler for environmental ppprotection -- Chapter 4. The Trans-Pacific Partnership : a step backwards in environmental protection -- Chapter 5. The debate over investor–state dispute settlement : who wins? -- Chapter 6. Conclusion—Is the US leading the world on a race to the bottom? -- Bibliography -- Appendices.


Theoretical thesis. Bibliography: pages 106-119

Awarding Institution

Macquarie University

Degree Type

Thesis MPhil


MPhil, Macquarie University, Faculty of Arts, Macquarie Law School

Department, Centre or School

Macquarie Law School

Year of Award


Principal Supervisor

Natalie Klein


Copyright Timothy James Webster 2017. Copyright disclaimer:




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