Bridging the Gap between International Investment Law and the Environment', 4th and 5th November, The Hague, The Netherlands

• Author: Rosalien Diepeveen, Yulia Levashova, Tineke Lambooy
• Position: Utrecht University, the Netherlands/Utrecht University, the Netherlands (Molengraaff Institute for Private Law and Research Centre of Water, Oceans and Sustainability Law); and Nyenrode Business University; the Netherlands (Center for Sustainability)/Utrecht University, the Netherlands (Molengraaff Centre for Private Law and the Research ...
• Pages: 145-160

Rosalien Diepeveen and Yulia Levashova and Tineke Lambooy, ‘“Bridging the

Gap between International Investment Law and the Environment”, 4th and 5th

November, The Hague, The Netherlands’ (2014) 30(78) Utrecht Journal of

International and European Law 145, DOI: http://dx.doi.org/10.5334/ujiel.cj

I. Introduction

A. Introduction and Objectives

On the 4th and 5th November 2013, the International Conference on Investment Law and the Environment

took place at the premises of the Dutch Ministry of Foreign Affairs. The conference was organised by the

Research Centre for Water, Oceans and Sustainability Law of Utrecht University Law School and the Center

for Sustainability of Nyenrode Business University. The Dutch Ministry of Infrastructure and the Environ-

ment and the Dutch Ministry of Foreign Affairs supported the conference as well as the law firm Pels Rijcken

& Droogleever Fortuijn. The organising committee is grateful to Kitty van der Heijden, Herman Bavinck,

Hugo von Meijenfeldt, Martijn Scheltema, Jaap Spier and Marleen van Rijswick for their good ideas and

active support concerning the organisation of this conference. The organising committee consisted of Yulia

Levashova, Tineke Lambooy, Ige Dekker and Rosalien Diepeveen.

The first day of the conference aimed to develop the academic debate in the field of international invest-

ment law and the environment. The second day served as a platform for a broader discussion on this

topical issue. Policymakers from many jurisdictions in the North and the South, trade law experts from

the European Commission and the Organisation for Economic Co-operation and Development (hereafter:

This contribution is based on the discussions that took place in the international conference

“Bridging the Gap between International Investment Law and the Environment” which was held

on 4-5 November 2013 in the Hague. The main goal of the conference was to answer the ques-

tion of how the gap between international investment law and the environment can be bridged.

Dierent perspectives were presented, helping to shed light on this issue. The emphasis of the

rst day of the conference was the academic debate in the eld of international investment

law and the environment. Four main perspectives were discussed: general principles of interna-

tional investment law and the environment, various legal regimes, specic legal regimes and case

studies. Furthermore, also the topics of sustainable development, the right to access to water

and climate change were elaborated upon by the experts. The second day of the conference

focussed on the perspective of policy-makers. Most of the topics were presented in the form of

panel discussions. Issues that were discussed included: the perspective of various intergovern-

mental organisations, concerns and dilemmas of non-European capital-importing countries, and

the European Investment Policy. This contribution elaborates upon the most important themes

and issues debated at the conference, providing academic and policy perspectives.

CONFERENCE REPORT

“Bridging the Gap between International Investment

Law and the Environment”, 4th and 5th November,

The Hague, The Netherlands

Rosalien Diepeveen* and Yulia Levashova† and Tineke Lambooy‡

* Utrecht University, the Netherlands

r.a.diepeveen@uu.nl

†UtrechtUniversity,theNetherlands(MolengraaInstituteforPrivateLawandResearchCentreofWater,Oceansand

SustainabilityLaw);andNyenrodeBusinessUniversity;theNetherlands(CenterforSustainability)

y.levashova@uu.nl and j.levashova@nyenrode.nl

‡UtrechtUniversity,theNetherlands(MolengraaCentreforPrivateLawandtheResearchInstituteofWater,Oceans

andSustainabilityLaw);andNyenrodeBusinessUniversity;theNetherlands(CenterforSustainability)

t.e.lambooy@uu.nl and t.lambooy@nyenrode.nl

Keywords: bilateral investment treaties; investment; environment; International Investment

Agreements; foreign direct investment; green economy; climate change; International Trade Law

UTRECHT JOURNAL OF

INTERNATIONAL AND EUROPEAN LAW

“Bridging the Gap between International Investment Law and the Environment”,

4th and 5th November, The Hague, The Netherlands

146

OECD), arbitrators, lawyers and academics were invited to participate in this international brainstorming

session on challenges and solutions.

On the first day, 16 academic specialists in the fields of international investment law, public international

law and environmental law came together from different parts of the world to present their papers on

topics addressing the gap between investment law and the environment law. This day’s program focused

on four subjects: (1) general principles of international investment law and the environment, (2) various

legal regimes, (3) specific legal regimes and (4) case studies.1 At the start of the day, to stimulate the discus-

sion, leading experts offered their insights regarding the current environmental challenges in international

investment law and they also participated in the closing discussion round. Most of the papers had been

exchanged beforehand among the presenters. Every academic specialist had been requested to review one

of the papers, to prepare a written peer review comment on such paper and to present his or her comment

in the conference to spark the debate.2

The academic experts will incorporate the peer review comments in their papers and then submit them to

the conference organisers for publication in a book containing the conference proceedings. The title of the

book will be: ‘Bridging the Gap between International Investment Law and the Environment’ and it will be

published in the series ‘Legal Perspectives on Global Challenges’ by Eleven Legal Publishing3 in mid-2014.

The publication date will be communicated to all participants of the conference and the editors’ intention

is to organise a book launch in order to publicly communicate the findings that came out of this research

project and conference.

The second day of the conference had a broader focus and the emphasis was on the policy angle.

The dilemmas of policymakers in the field of international investment law and protecting the environ-

ment were discussed during various panel discussions. The speakers included politicians, policymakers

and representatives of international organisations, legal practitioners, academics and civil society. In the

first panel the perspective of various intergovernmental organisations was presented and discussed. The

second panel revealed the main concerns and dilemmas of non-European capital-importing countries

(mostly from the South), illustrated by case studies. The third panel delved into the topical theme of

European Investment Policy.

This conference report will inform the reader on the most important themes discussed during the confer-

ence. Section 2 will provide a bird’s-eye view of the interaction between international investment law and

the environment and will pinpoint the challenges and opportunities in bridging the gap between these

two fields of law. It will underline that political tensions and business interests make easy solutions unat-

tainable. Section 3 will give consideration to the link between economic growth and sustainable develop-

ment. Section 4 will deal with international investment law with regard to access to water. Section 5 will

reflect on the link between international investment law and climate change challenges. Section 6 discusses

the approach of intergovernmental organisations, such as the OECD and the United Nations Conference

on Trade and Development (hereafter: UNCTAD) with regard to foreign direct investment (hereafter: FDI)

and the environment. Section 7 describes the perspective of non-European countries, including Ecuador,

Argentina, Venezuela, Indonesia and Mexico as presented on the second day of the conference. Section 8

discusses environmental concerns in the context of the European Investment Policy. This contribution will

end with some concluding remarks.

II. International Investment Law and the Environment: Where do we stand?

Jorge E. Viñuales4 elaborated upon the interaction between investment law and the environment. These two

fields are increasingly interacting.

First of all, during the last two decades, the private sector’s role in environmental governance has moved

from being marginal to central. The private sector has a very important role because it has become clear

that the public sector alone cannot finance the movement from a brown to a green economy.5 The private

1 Please see the conference website for abstracts of the papers: http://iilconference.com/speakers.html (last accessed 21 February

2014).

2 For the list of speakers, please see the conference website: accessed 23 February 2014.

3 Please find a draft table of contents for the book here: accessed 23 February

2014.

4 Professor Jorge Viñuales holds the position of Harold Samuel Professor of law and environmental policy at the University of Cam-

bridge.

5 According to Uwe Deichmann, a Senior Environmental Specialist at The World Bank, brown growth refers to the ‘economic develop-

ment that relies heavily on fossil fuels and does not consider the negative side-effects that economic production and consumption

have on the environment.’ Green growth ‘implies moving to a far cleaner energy system that uses energy more efficiently and to