ABSTRACT

This chapter examines whether enhanced investment protection can hamper the host state’s duty to pursue environmental health objectives. It analyses the tools that may help arbitrators reconcile the different interests at stake. The chapter deals with a critical assessment of the explored legal framework and jurisprudence. Conceptualizing environmental health as a component of public health determines a paradigm shift that allows the translation of environmental concerns into the language of the state’s concerns to protect public health. At the procedural level, most international investment agreements provide investors direct access to an international arbitral tribunal. Investment disputes with environmental health elements are characterized by the need to balance the public interest of a state to protect and/or restore its environmental health and the legitimate interests of foreign investors to protect their investments. Several investment treaty arbitrations have addressed the question of whether regulation allegedly aimed to protect environmental health may be deemed to be an indirect expropriation.