Artículos30 junio de 2023
How Latin-American investment policies are facing climate emergency challenges
1. Introduction
It is undeniable that humankind is going through several crises. One that requires our immediate attention is the climate emergency, which threatens our near future and subsistence. The responses need to come from diverse areas of knowledge and require a change of paradigms and models, even daily life as we know it.
Regardless of specific political and scientific discussions, developing legal tools to implement the measures necessary to surpass the crisis is essential. Specifically, International Investment Law (“IIL”) has been identified as an interesting means to deal with the climate crisis as it can encourage a green economy model and investment flows directed to environmentally friendly energy transitions.
However, the other side of the coin shows that the IIL regime creates obstacles to implementing regulatory frameworks that aim to address the crisis. It is evident that, due to the obligations imposed by International Investment Agreements (“IIAs”)1, host States are in the “dilemma” of protecting the environment or complying with said obligations, as their regulatory power is affected when the IIAs represent a means to challenge environmental regulatory measures that potentially affect protected investors.
Hence, it is essential to analyze how the IIAs network operates and adapts to such a worrying context under such consideration. For that purpose, the authors have chosen Latin America as the focus of this study, considering the proliferation and development this branch of law has had in the region.
According to UNCTAD’s Investment Policy Hub, nowadays, this geographical zone has (either in force or signed) around 627 Investment agreements2. Then, the purpose of this text is to establish and analyze the general scene in Latin America regarding how current IIAs provide solutions for the climate emergency in the field of International Investment Law. Hence, the authors have chosen ten representative States3 based on the amount of IIAs signed and their role in the region, both economically and environmentally.
The first part of this paper (Cfr. 2) will focus on whether IIL has become a risk or a tool for host-States regulatory power regarding the climate crisis. The following session (Cfr.3) will address the relevant provisions identified by the authors, considering their role in the State’s power to deal with climate emergencies. The final session will address the conclusion, pointing out how the international investment system requires a different model to address the crisis (Cfr.4).
2. The tension between Investors’ rights and Climate Change measures
IIA impose a set of standards to protect investors from certain changes that can affect their position in a specific legal framework that allows the development of their business. The rationale behind this idea implies that alien investors are at a disadvantage regarding the State’s power, which can change the rule of law and thus damage the pre-existing conditions for the investment endeavor.
Hence, considering how those obligations are established, host-States should aim to exercise their regulatory power to keep those guarantees and respect the investor’s reliability on the legal framework. Nevertheless, the dispute settlement mechanism (DSM) set in IIAs has become a way through which investors can challenge regulations that threaten their investment; therefore, host States tend to act particularly cautious when they have to intervene in economic sectors in which the presence of international investors is considered to avoid an international investment arbitration dispute that they might lose.
The development of IIL has shown to represent a risk regarding the objectives set to act against the climate crisis. Considering the aforementioned, by challenging environmental regulations under the scope of international investment tribunals, arguing they are a breach of the standards of protection set in the Investment Agreement, it seems like, under IIL, there is no place for environmental regulations if they affect the object of investment directly4.
For instance, standards like ‘Fair and Equitable Treatment’, which implies the protection against the changes in the legal framework of the host State, legitimate expectations, and not carrying out the actions promised to enhance the investment, leave a broad scope that allows investors to allege that a specific regulation is a threat to their investment5.
Then, it is crucial that in the IIAs, there are clauses that allow host-states to justify their exercise of regulatory power; in other words, provisions that contain governments’ ability to adopt environmental measures, particularly those related to climate change. Under such scenario, the crisis cannot be fought if the prevalence regarding the investor’s rights persists over the need to adopt measures on the matter6.
The system and its rationale need to change by recognizing that states must act in response to the crisis. Nevertheless, such an effort is useless when the balance is inclined to protect investors’ rights at all costs7.
3. Relevant Dispositions in Investment Agreements and Investment Chapters
As stated above, through this section, the authors will develop the most pertinent clauses extracted from the 395 treaties studied, in which they found that States should be able to justify measures they adopt to address the climate emergency.
A. Right to regulate environmental protection.
Authors found that, since 2005, some States included within their IIAs articles that recognize: “the right of each Contracting Party to establish its own levels of domestic environmental protection and environmental development policies and priorities, and to adopt or modify accordingly its environmental legislation”8. As a variation in the wording, other treaties refer to a general right to regulate to achieve policy objectives9.
It is vital to notice that by comparing general clauses to those more specific in their wording, it is interesting to see how States empower themselves from the moment of the negotiation. In other words, a well-learned lesson shows that this type of agreement should not have such a broad and vague phrasing, considering it leads to more comprehensive and uncertain obligations for the parties (particularly the host-State).
As States gain more awareness on which are the elements under risk when they acquire international obligations, particularly those related to international investment, they gain consciousness on how to negotiate these treaties without resigning to their most fundamental values and their protection. Thus, for the climate crisis, it is logical to conclude that by including specific clauses that address this sort of interests, the parties are not only recognizing their right to set the protection level they want, but also that they can change it accordingly to the circumstances without potentially violating investor’s rights under the treaty10.
Finally, the authors highlight that the provisions, considering their wording, imply an obligation of recognition among States. Such recognition must be translated to the foreign investor, reinforcing their basic duty to comply with the host State’s law. Then, when an environmental regulatory measure is challenged, there is a justification for States to implement it as the right has been recognized in the provision.
A. Nothing prevents States from adopting measures for the protection of animal and plant health if they are not discriminatory, arbitrary, or unjustified
In 1997, States started to implement environmental protections under a clause called “General Exceptions and Exemptions” which was first implemented in the Bilateral Investment Treaty (“BIT”) between Uruguay and Canada. This clause provided that nothing in the Agreement shall be construed to prevent any Contracting Party from adopting or maintaining measures, including measures for the protection of the environment: (a) necessary to ensure compliance with laws and regulations not inconsistent with the provisions of this Agreement; (b) necessary to protect human, animal or plant life or health; or (c) relating to the conservation of finite living or non-living natural resources if such measures are implemented in conjunction with restrictions on domestic consumption.
This type of provision continued to be used from the 1990s to 2022 in various treaties with different objectives, nexus requirements, and prohibitions on application11. The authors have identified that during the last two decades, States established within their IIAs elements that allow them to determine certain desired levels of protection regarding environmental issues. In case of a dispute, this is an element to consider for interpretation of the allegedly breaching measures.
In the analyzed agreements, there are different types of regulatory objectives and linkages in relation to the environment, then the State may adopt measures: (a) necessary for the protection of animal and plant life and health12, “which the Parties understand to include environmental measures necessary to protect human, animal or plant life and health”13; (b) necessary to conserve living and non-living non-renewable natural resources14, if such measures are made effective in conjunction with restrictions on domestic production or consumption15; (c) related to the protection of the environment or the conservation of exhaustible natural resources, if such measures are made effective in conjunction with restrictions on domestic production or consumption16; d) necessary for the protection and conservation of the environment, including all its living and non-living natural resources17; e) necessary to protect public morals or to maintain public order18; f) necessary to ensure compliance with laws and regulations not inconsistent with the provisions of this Agreement19; g) necessary to protect the environment20; h) related to the conservation of living or non-living exhaustible natural resources21; i) appropriate measures to protect human, animal or plant life or health, or the environment22; and j) appropriate measures for the conservation of living or non-living non-renewable natural resources23.
It is essential to highlight that IIAs between Argentina - Chile FTA (2017), Chile - Hong Kong BIT (2016), and Colombia - Japan BIT (2011) make specific reference to the adoption of environmental measures developing them through a list of policies, unlike other treaties that contain lists of general public policy objectives. Additionally, in the Mexico - Turkey BIT (2013) and the Australia - Peru FTA (2018), the State’s power to adopt, maintain or enforce measures to ensure that investment is developed in a manner sensitive to environmental objectives is recognized as an exception24. IIAs that highlight the intention of States to exclude their governments from a State’s international responsibility for the adoption of any measures necessary to protect the environment or specific measures provide:
a. Different prohibitions of application are enunciated; for example, the measures must not be a) a means of arbitrary or unjustified discrimination25 between the Parties26 when the same conditions prevail27;
b. constitute a restriction on international trade28, that affects investment29;
c. constitute a restriction on investment30;
In this sense, to determine the extent of the regulatory powers of the States that have this type of clause, it is necessary to analyze the regulatory objectives recognized by the State, the nexus between these, and the prohibitions of application.
However, the usefulness of this clause is called into question. The Tribunal in Eco Oro v. Colombia ruled on the application of this exception. The Tribunal analyzed this provision according to the objective and purpose of the FTA, to conclude that “Article 2201(3) such that whilst a State may adopt or enforce a measure pursuant to the stated objectives in Article 2201(3) without finding itself in breach of the FTA, this does not prevent an investor claiming under Chapter Eight that such a measure entitles it to the payment of compensation”31. All the above considering that: a) there is no express intention to exclude these measures from compensation, as it is in other provisions of the FTA (Article 811(2)(b)); b) if these measures did not generate State liability some provisions of Chapter Eight would become redundant32; c) being a “general exception” to Chapter Eight, there must be circumstances in which an investor must resort to arbitration and claim compensation for the losses suffered—supporting its interpretation in the Bear Creek case and the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts articles 27 and 36.
The interpretation given in Eco Oro ignores the useful effect of this clause. In Infinito Gold v. Costa Rica, the Tribunal recognized that the exception provided in Annex 1, Section III of the Costa Rica-Canada BIT does not exempt the Respondent from liability for breaches of substantive BIT obligations by providing that “Nothing in this Agreement shall be construed to prevent a Contracting Party from adopting, maintaining or enforcing any measure that is consistent with this Agreement”. Conversely, where an exception does not limit a State’s regulatory powers to “comply with measures consistent with this Agreement”, it may exempt the State from its breach of substantive BIT obligations.
“780. (...) Because Section III (1) does contain the expression “which is consistent”, it cannot be interpreted as an exception or exemption from the protections of the BIT with respect to environmental measures.”
781. The Tribunal concludes that Annex I, Section III (1) of the Costa Rica-Canada BIT does not exempt the Respondent from liability for breaches of the substantive protections conferred by the BIT. Accordingly, it cannot exempt the Respondent from its breaches of the FET obligation33.” (authors’ translation, Bold out of text)
Based on these preceding, it is possible to conclude that the usefulness of this clause will depend firstly on its wording, in the description of its regulatory objectives, the nexus of the objectives with the measures, and the prohibitions of application will determine the regulatory flexibility with which the State may adopt regulatory measures. Secondly, the degree of flexibility will depend on how investment tribunals interpret the clause. There are cases, such as Eco Oro v. Colombia, where the Tribunal found that the State may adopt the regulatory measures provided for in the exception clauses, but this does not exempt the State from its obligation to pay compensation to the investor in case of caused damages. This interpretation supported the fear of States adopting measures to protect the environment. However, there are other Tribunals, such as Infinito Gold v. Costa Rica, which seem to affirm that this type of exception excludes the liability of the States as long as the measures comply with some regulatory objective foreseen in these exceptions and are not discriminatory or unjustified.
B. The Minimum Standard of Treatment is not violated when non-discriminatory or arbitrary legislative or regulatory acts are adopted to protect the environment
The Argentina – United Arab Emirates BIT (2018)34 is the only agreement in which the Minimum Standard of Treatment clause expressly excludes a breach when legislative or regulatory acts are adopted to protect the environment. The provision establishes that:
“Article 5: Minimum Standard of Treatment
(…)
4. Non-discriminatory and non-arbitrary legislative or regulatory measures adopted by either Party to protect general welfare objectives, such as (…) environmental protection.” (Bold out of text).
This clause reflects the importance that environmental regulation has taken on for States in BITs as a legitimate regulatory objective35. This article increases the level of environmental protection and generates greater regulatory flexibility for States in environmental matters when it recognizes the right of States to adopt legislative or regulatory measures to protect the environment.
However, it is crucial to recognize that this brings new challenges for States. For example, in Eco Oro v. Colombia, the Tribunal required the State to prove the existence of a specific and scientifically proven severe or irreversible damage36 and the effect and proportionality of the measures adopted by the State37. The Tribunal also contends that States must have coherent environmental policies and regulations. Even in the scenario where a state acts to protect, for example, the preservation of the environment, for there to be a legitimate objective, it must work coherently with all State entities to achieve this objective, otherwise this measure will become arbitrary and even contrary to good faith38.
C. Environmental Protection and Indirect Expropriation
Following the aforementioned, with regard to the State’s right to regulate, it was found that, in the earlier 2000, States began to provide exceptions to compensable expropriations. They considered the host-State’s right to regulate in specific fields, where the law has traditionally understood the amplitude powers that the State has39, given particularly high importance to public interest components, such as public health, safety, and the environment40. This is the case of Latin American treaties that established clauses such as:
“(…) Except in rare circumstances, such as when a measure or series of measures is so severe in the light of its purpose that it cannot be reasonably viewed as having been adopted and applied in good faith, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriation.41” (Bold out of text)
The authors believe that even though not all treaties have the same wording42, there is a similar content regarding the clause’s major objective: to safeguard the State’s policy space to implement legitimate regulations of general applicability for sustainable development purposes43.
As stated above, environmental protection has brought tensions between foreign investors’ rights and the State’s rights to regulate44. Doctrine shows that investors believe these measures can create additional barriers and lead to potential losses45. Despite that, some factors, such as scientific developments and how they have improved the understanding of environmental impacts, and how to prevent them require states to adopt an environmental regulatory framework46.
Therefore, whereas we believe in the police powers of States, the application of this type of disposition should be made only if the measure implemented is a non-discriminatory measure47 adopted by a State in good faith48, designed and applied to protect the environment49 and which is not disproportionate50. Complying with these requirements would depend on what is established in the applicable treaty provisions51. Therefore, the difficulty in proving the existence of a non-compensable measure would be a case-by-case situation.
D. Performance Requirements
An additional provision found in Latin American IIAs is related to the imposition of Performance Requirements on the investors and their investments. Mainly, most IIAs containing a Performance Requirement provision were found to prohibit its establishment. However, in some of them, an exception was included52:
“2. A measure that requires an investment to use a technology to meet generally applicable health, safety or environmental requirements shall not be construed to be inconsistent with paragraph 1(f)
(…)
6. Provided that such measures are not applied in an arbitrary or unjustifiable manner, or do not constitute a disguised restriction on international trade or investment (…)53’’ (Bold out of text)
This exception allows the State to impose these kinds of measures if they are not applied arbitrarily or unjustifiably and do not constitute a disguised restriction to trade and investment.
Even though there is not a consistent definition of performance requirements, it would be correct to consider them as stipulations or regulatory conditions imposed by host-States requiring investors to achieve certain economic and social goals regarding the establishment or operation of their investments54. Then, the performance requirements clause may be a potential policy tool to help improve the environmental conditions in the communities where the investment is located55.
Nevertheless, as IIA are not by themselves legal instruments promoting environmental concerns, the interests of investors do not always coincide with States’ environmental goals. Let’s imagine that a Latin American country with an extractive background tries to enhance a Performance Requirement for the implementation of a new technology (more expensive than the older one) for the extraction of gold in its territory. What would happen with the investor in the territory that already has an investment? Would not the risk of future disputes arise?
Whereas Performance Requirements are less risky in the pre-establishment fashion, it is possible to believe that this type of measure would probably increase investment costs and thus discourage investment in the host-state.
Therefore, the difficulties of implementing this type of clause, particularly the misinformation regarding the utility of the policy tool, can cause the recent fault of its application. Nevertheless, if the clause is applied in a correct manner, it would benefit countries where the intention of changing technologies such as “fracking” has a legitimate purpose in environmental protection.
E. States should not or will endeavor not to lower environmental protection standards or “anti-race-to-the-bottom” clauses56
Since the 1990s, under Latin-American FTA and BITs, clauses can be found that recognize that it is inappropriate to relax or diminish environmental measures. In that sense, States must or will endeavor not to derogate from or reduce environmental protection to acquire, expand, retain, or preserve an investor’s investment in their territory. For example, Article 14 of the 1996 Chile - Canada FTA states:
“The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health or safety or environmental measures. Accordingly, no Party should waive or otherwise derogate from, or offer to waive or derogate from, such measures as a means of inducing the establishment, acquisition, expansion or retention of an investor’s investment in its territory. Suppose a Party considers that the other Party has encouraged an investment in such a manner. In that case, it may request consultations with that other Party and both Parties shall consult with a view to avoiding such inducements” (own translation) (Bold out of text).
Even though this article recognized the importance of the environment for the parties in the agreement, it led to a level of unprotection. This article establishes a legal duty57, however, no mechanism of protection is established by means of which the other contracting State, as a creditor of a right of credit, may “demand from the debtor the performance of a specific performance owed by the latter, and which, in the event of non-performance, enables the creditor to obtain satisfaction on the debtor’s patrimony”58. The above, since there is no coercive mechanism in the head of the other State to claim the fulfillment of this duty. Thus, this clause allows but does not oblige States to request a consultation in case they consider that the other State has adopted measures that reduce environmental protection to encourage investment.
Consequently, compliance with this provision depends exclusively on the good faith of the other State. Although the existence of this provision is striking, it does not represent real protection for environmental issues.
Despite these problems, this type of clause has become recurrent in the BITs and FTAs from 2000 to 2022.59 Some have adopted different wordings that have given a dissimilar scope, in some cases more protective, to this type of clause. For example, the BIT between BLEU and Peru60 established a provision that reduces the degree of responsibility that the State has in relation to the environment by limiting the State’s actions to “shall strive to ensure” that does not waive or derogate from environmental regulation or offer it. Therefore, the State is not in breach of its obligations when environmental legislation is repealed or waived to stimulate investment, but only when, regardless of the result, it has not implemented all the means to ensure that this does not happen61. Thus, it will be difficult for another State to determine whether there is a breach as the regulatory powers of a State make it challenging to determine that all ‘means’ were used to avoid non-compliance.
Additionally, treaties such as Argentina - Chile FTA of 2017 provide that “No Party shall waive or otherwise derogate from, relax or offer to waive, relax or derogate from such measures as a means of encouraging the establishment, acquisition, expansion or retention of an investor’s investment in its territory” (Bold out of text)62. However, there are other treaties such as the BIT between Colombia and Japan of 2011 or the BIT between Argentina and Japan of 201863 that only mention “as an incentive for establishment, acquisition or expansion”64. This slight difference broadens the regulatory powers of the State as it recognizes that the State may derogate or waive the application of environmental legislation to encourage an investor to continue in the territory of the contracting party, all subject to the condition that there is no expansion by this investor.
In conclusion, although these types of clauses are based on the recognition of the importance of the environment, they are still insufficient to guarantee its effective protection, since: a) they do not have a mechanism to demand compliance by other States, and those that provide for consultation do not indicate their binding nature for the States; b) in some cases they require the sheer effort of the State, but not a State policy that guarantees compliance, and in some of them there is no duty and obligation on the part of the State, but only the recognition that it is inadequate to promote investment by reducing environmental protection; and, finally c) some treaties are not clear about the scope of the State’s regulatory powers, making these clauses ambiguous and even harmful to environmental protection.
F. Exclusion of the Dispute Settlement Mechanism for environmental purposes
During the two decades of the XXI century, some States have limited the scope of the Dispute Settlement Mechanism in matters related to environmental regulation65. As an example, the BLEU - Colombia BIT (2009) environmental article provides that: “The dispute settlement mechanisms under Articles XII and XIII of this Agreement shall not apply to any obligation undertaken in accordance with this Article”66.
Regarding the former scenario, it must be highlighted that the environmental obligation recognized in those IIAs, which is not subject to arbitration, is that host-States, cannot diminish their environmental standards67. Furthermore, the provisions related to environment and investment aim to ensure that host States do not fall into regulatory chilling, meaning that they can adopt, maintain, or enforce their environmental legislation68. Then, it is logical to conclude that parties recognized within the IIAs that they hold their regulatory power for that matter and that the treaty should not become an instrument to determine the adoption of those measures they consider necessary.
It is interesting to consider the reasons to set an exclusion in this sense. On one hand, it allows granting a specific scope to those disputes that originated in environmental measures, meaning that the approach towards them will not have a pro-investor interpretation. However, the natural question under consideration is who will be the appropriate judge or adjudicator to analyze a potential dispute between the host State and the investor originating in the former’s right to regulate environmental issues; the most likely answer will be the national judge who is in charge of state-related disputes69. Regardless of the appropriate judge to solve such a dispute, under that case, the adjudicator has to consider the IIA to analyze the level of environmental protection set by the State under its right to regulate this matter.
On the other hand, such a provision requires that investors are aware of the environmental position set by host States to identify whether the measure falls under the scope of this sort of provision or is a disguised means to avoid the treaty. In the latter situation, it is evident that the regulation is subject to be challenged under the treaty by an investment arbitral tribunal.
Finally, the authors find it relevant that such provision is within some treaties that still need to be in force and are not as common as one might think. Even though several IIAs (particularly the most recent ones) include a provision on environment and investment that express a clear aim that IIL does not cause a regulatory chill on environmental matters, parties still decide to open the possibility that a dispute originated in environmental concerns is solved through investment arbitration.
4. Conclusion
Regarding what has been studied above, even if IIAs are not legal instruments promoting environmental concerns, recently, they should address critical social aspects such as property protection, health standards, and environmental protections. The values that society claims, and States need to protect and provide.
It is the authors’ opinion that, although the increase of environmental clauses shows awareness about the new tendency regarding environmental protections, States seem frightened to regulate as they seem to be misinformed about the content and scope of the application of these types of dispositions. Therefore, they prefer to enter a regulatory chilling.
Even though the authors recognize the tension the implementation of these measures would create between foreign investors’ rights and States’ right to regulate, host States need to develop the necessary and appropriate legal tools to surpass the crisis. Indeed, it is essential to count on a network of clauses within each IIA that grants host states certainty on how they can regulate and address a crisis such as a climate emergency.
Furthermore, this field of study and its object in the future should count on flexible mechanisms for host-States to adapt to the circumstances without incurring international responsibility. To that purpose, immediate action requires not only planning new models with more explicit standards but also renegotiating obsolete agreements and using accordingly the tools given in the present useful ones, considering the will of the parties and the urgency to address the crisis.
The authors have identified some valuable and practical tools to deal with the climate crisis, from clauses passing to the Minimum Standards of Treatment, the “anti-race-to-the-bottom” clauses, the adoption of measures for the protection of animal and plant health if they are not discriminatory, arbitrary, or unjustified, to the exclusion of expropriatory measures and the Dispute Settlement Mechanism, to the implementation to performance requirements.
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Peru – Singapore FTA (2008)
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Canada - Peru FTA (2008)
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Japan - Peru BIT (2008)
China - Colombia BIT (2008)
Colombia - India BIT (2009)
Uruguay – Korea BIT (2009)
BLEU (Belgium-Luxembourg Economic Union) - Colombia BIT (2009)
Colombia – United Kingdom BIT (2010)
Korea - Peru FTA (2010)
Colombia – Republic of Korea BIT (2010)
Costa Rica – Singapore FTA (2010)
Centro América – México FTA (2011)
Colombia - Japan BIT (2011)
Costa Rica – Peru FTA (2011)
Mexico - Peru FTA (2011)
Guatemala - Peru FTA (2011)
Panama - Peru FTA (2011)
Mexico - Turkey BIT (2013)
Colombia - Panama FTA (2013)
Colombia - Israel FTA (2013)
Colombia - Singapore BIT (2013)
Colombia - Costa Rica FTA (2013)
Colombia - Turkey BIT (2014)
Colombia - France BIT (2014)
Pacific Alliance Additional Protocol (2014)
Brazil - Chile BIT (2015)
Honduras - Peru FTA (2015)
TPP (2016)
Brazil - Peru ETEA (2016)
Argentina - Qatar BIT (2016)
Chile - Hong Kong BIT (2016)
Colombia - United Arab Emirates BIT (2017)
Argentina - Chile FTA (2017)
Australia - Peru FTA (2018)
Argentina – Japan BIT (2018)
Argentina - United Arab Emirates BIT (2018)
Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) (2018)
Uruguay – United Arab Emirates BIT (2018)
Brazil - Chile FTA (2018)
Uruguay - Turkey BIT (2019)
Brazil - India BIT (2020)
Colombia - Spain BIT (2021)
Pacific Alliance - Singapore FTA (2022)