The Energy Charter Treaty (ECT) is one of the best-known and most controversial of the international investment treaties. The energy transition necessary to achieve the Paris Agreement climate target will require large and sustained flows of investment capital. Scholars, environmentalists, industry representatives, and governmental officials have intensively debated the modernization of the ECT. The main point of contention is whether the ECT can facilitate the energy transition or whether it entrenches fossil lock-in in unsustainable and unjust ways. This article proposes a comprehensive and integrated approach to the ECT, guided by the theoretical matrix of Earth system law scholarship. Our analysis reveals that the ECT cannot address contemporary socio-ecological challenges, but rather it remains a sectoral piece of a supranational economic constitution far removed from the most pressing exigencies of the Anthropocene.

In the past decade, the practice of investor–State arbitral tribunals addressing investment protection in the context of armed conflict and military occupation has expanded. This has prompted a growing interest in the relationship between international investment law and international humanitarian law (IHL), two regimes with markedly different relationships to war—IHL more pragmatic and international investment law more idealistic. This article argues that, while its lack of pragmatism might render international investment law ineffective in changing how war is conducted, it is the regime under which States are most likely to be held liable for the conduct of war. This is a result of its more robust primary obligations, more effective enforcement mechanisms and large awards of damages. Nevertheless, comparing international investment law and IHL does also reveal some similarities—the legacy, it is argued, of a time when the laws of war were more about protecting private property and neutral commerce than civilians. Putting these two regimes together in this way exposes international law's uneven distribution of protection in war.

Public and political controversies over Investor–State Dispute Settlement (ISDS) have prompted reform processes in international investment law, at bilateral, regional and multilateral levels, with different actors shaping the future of international investment governance. In its essence, the options for the ISDS reform reflect the diverging perspectives on the rule of law in international law. Ultimately, they present a choice about who should control power over States’ action in issues of public importance – the States who have created the system, or international investment tribunals who have shaped the legal development of the system. This paper considers the application of the rule of law as a normative meta-principle to international investment law and its dispute settlement, and it sheds light on different perspectives of this concept, as they shape the ongoing ISDS reform(s).

Investor–state dispute settlement (ISDS) has been heavily criticized from the perspective of human rights. However, the potential adverse human rights impacts of ISDS and the responsibilities of businesses to avoid causing or contributing to those impacts under the UN Guiding Principles on Business and Human Rights have yet to be spelled out. Although states are currently reforming ISDS, progress has been slow, and businesses have an independent responsibility to ensure that their operations do not harm human rights. Against this background, this article unpacks how businesses might contribute to three non-exhaustive examples of potential human rights impacts of ISDS: namely, the chilling effect on human rights regulation, crippling mega-awards and direct impacts on third-party rights. This article breaks new ground by exploring how human rights due diligence could be a useful tool for businesses to identify and address these impacts.

This article argues for a fundamental raison d’être reconceptualization of international investment law (IIL) through Martha Fineman’s ‘vulnerability theory’. The theory helps identify the structural sources of IIL’s shortcomings, whilst philosophically challenging the one-sided view that foreign investors are entitled to protections, but are free from obligations vis-à-vis the communities affected by their undertakings. Emphasizing the productive power of the state to take positive action that acknowledges ordinary citizens’ embeddedness within, and dependence upon, surrounding structures, the vulnerability theory challenges the hegemonic perception of the state as a source of danger – a view which has hitherto undermined both the potency and the enforceability of investor obligations. Used as a heuristic device in studying both IIL’s existing structures and the potential avenues for reimagining it, Fineman’s theory not only shines a novel light on the foundational premises of IIL, but also grants theoretical traction to existing ideas about improving the system.

This Article identifies the problems of an Appellate Mechanism for ISDS Tribunals in relation with its possible benefits. We propose the inclusion of certain design features to improve the working of an eventual Appellate Mechanism and help mitigate problems related to procedural, conflict resolution, and substantive concerns. We finish by identifying the most central problems with a possible Appellate Mechanism, which helps to narrow down options within the ongoing reform process at UNCITRAL. Overall, we illustrate how institutional choice is always contextual and that all institutional options are imperfect and subject to important trade-offs.

In today's data-driven economy, data have been dubbed as the new oil. Hence, a close relationship is shared between the increasing amounts of international investments and the increasing volumes of cross-border data flows. The aim of this article is to discuss the legal aspects of the new data paradigm in the international economy and place this discussion in the larger framework of globalization and the Liberal International Order. The central thesis of the article revolves around the crucial role played by domestic laws in the fragmentation of international investment law. The article further discusses the interplay between national and international legal landscapes and how the changing nature of the Liberal International Order is affecting the flow of data across borders. In this context, it also discusses the issues that are presented by a lack of any comprehensive international framework governing Cross-Border Data Flows. The need to update existing agreements and laws in order to factor in digital investment is also highlighted.

‘Development’ is a legal concept which has been central to the practice of international economic law (IEL). This Article examines how ‘development’ continues to be at the heart of struggles between domestic investment laws (DILs) and international economic law. By examining over 3000 international investment agreements (IIAs) and DILs signed in the last seven decades, this Article identifies the ways in which the concept of development has evolved in tandem with the growth of international economic law by dividing the history of international investment law into six main phases. It traces the emergence of ‘development’ in DIL to the decolonization era arguing that post 1990, the proliferation of international investment treaties and growth of investment treaty arbitration have been used as tools of liberalization on the weak premise that this would lead to economic development. In this context, this Article examines closely the interpretation of ‘investment’ by ICSID tribunals, promotion of international arbitration for economic development, attempts to internationalize economic development contracts, continued relevance of the New International Economic Order, and shift to sustainable development in IEL discourse.

A principle that prohibits States from weakening their domestic levels of environmental protection continues to emerge at varying speeds within international trade, investment and environmental law. This article explores the principle's diverse history, rationale and legal expression in each of these domains and finds that its various articulations in different international treaties suffer the same shortfalls and deficiencies. Non-regression clauses may leave the complexities and nuances of implementing environmental protections unaddressed, including identifying and measuring when a regression has occurred and balancing these environmental protections with other legitimate policy and environmental measures. As these clauses are increasingly subject to investor–State and State–State dispute procedures, States expose themselves to heightened liability for changes to their environmental laws, even where those changes might be legitimate and reasonable. The particular emergence of this principle in environmental law offers treaty-makers an opportunity to clarify the rights of States to derogate from otherwise narrowly drafted clauses that require them to maintain their level of environmental protection strictly.

This article argues that although most Caribbean States have in the last 60 years ascended to statehood, colonialism continues to exist in new and variable forms. It relies upon the concept of ‘coloniality’ as advanced by Schneiderman to contend that the international investment law regime, whose history and evolution is rooted in colonialism, relentlessly pursues the economic interests of foreign investors and capital-exporting countries. It draws important connections between historic colonialism and the contemporary regime for the protection of foreign direct investment by situating the Caribbean's experience in the light of the rationales, tropes and methods arising in the past which endure in investment law's domains, as advanced by Schneiderman in his new book, Investment Law's Alibis, namely (a) profitability and privilege; (b) a discourse of improvement; (c) distrust of local self-rule; and (d) construction of legal enclaves. It is argued that each of these features of colonial rule, from a Caribbean perspective, is inscribed in the discourse and practices of the international investment law regime.