A multifaceted approach to trade liberalisation and investment protection in the energy sector = A multifaceted approach to trade liberalization and investment protection in the energy sector

In A Multifaceted Approach to Trade Liberalisation and Investment Protection in the Energy Sector, Elena Cima and Makane Moïse Mbengue bring together leading academics and practitioners to discuss the most significant challenges faced by trade liberalization and investment protection in the energy sector. At the same time, they address the environmental and human rights issues that often underlie these challenges, in a skillful attempt to bridge the gap between these different perspectives and ultimately pave the way to a multi-faceted and comprehensive approach to the subject matter. Half Title 1 Series Information 2 Title Page 3 Copyright Page 4 Contents 5 List of Tables 7 Notes on Contributors 8 Chapter 1 When Turning a Blind Eye Is No Longer an Option: The Importance of Tackling Energy Trade and Investment Law from Multiple Fronts 13 1 Introduction 13 2 International Economic Law and the Challenges of Capturing the Essence of Energy 15 3 Economic v. Non-Economic Values: Between Synergy and Conflict 18 4 Structure of the Book 21 References 25 Chapter 2 Dissecting the Green Component of 21st Century Industrial Policy in the Energy Sector: Implications for the wto System 28 1 Introduction 28 2 How Green Is Green Industrial Policy? Explaining Patterns in wto Disputes 32 2.1 Green v. Industrial Narrative in re Government Support Schemes 32 2.2 Green v. Industrial Narrative in re Trade Remedy Actions 35 3 Assessing Mutual Supportiveness in Light of the Outcomes of wto Disputes 39 3.1 re Subsidies under wto Law 39 3.2 re Trade Remedies under wto Law 43 4 What Way Forward? 48 5 Conclusions 52 References 53 Chapter 3 Stabilisation Clauses in Long-Term Investment Contracts: Their Evolution and Their Application by Investment Tribunals 55 1 Introduction 55 2 The Evolution of Stabilization Clauses 57 2.1 From Indispensable Protection to Criticized Practice 57 2.2 Stabilisation Clauses in the Era of Corporate Social Responsibility 61 2.2.1 From Freezing Clauses to Economic Equilibrium Clauses 62 2.2.2 From Stabilisation Clauses with a Broad Scope of Application to Limited Stabilisation Clauses 66 3 The Application of Stabilisation Clauses by International Tribunals 69 3.1 Early Cases: The Legality of Stabilisation Clauses 69 3.2 Stabilisation as a Vested Right 73 3.3 The Interplay between Stabilisation Clauses and International Investment Treaty Protection 74 3.3.1 Breach of Stabilisation Obligation as Expropriation of the Stabilised Right 75 3.3.2 Violation of the Stabilisation Clause Amounting to a Breach of the Umbrella Clause of a bit 76 3.3.3 A Breach of Stabilisation Clause as a Breach of the Fair and Equitable Treatment or the Protection and Security Standard 77 4 Conclusions 79 References 80 Chapter 4 The Implications of Sustainable Development Goals for Energy Trade and Investment 82 1 Introduction 82 2 The sdgs and Energy 83 3 International Law and Sustainable Energy 85 4 The sdgs, Trade, and Investment 88 5 The sdgs and International Trade Law 89 5.1 Potential for the sdgs in the Jurisprudence of the wto’s Dispute Settlement Body 92 6 The sdgs and International Investment Law 94 6.1 Potential for the sdgs in the Jurisprudence of Investment Tribunals 97 7 Conclusions 102 References 102 Chapter 5 The International Governance of Fossil Fuel Subsidies as Testing Ground for the Fragmentation and Deformalisation of International Law? 104 1 Introduction 104 2 Mapping the Institutional Complex 108 3 Promoting Fossil Fuel Subsidy Reform through International Legal Regimes 113 3.1 Fossil Fuel Subsidies and the Global Trade Regime 113 3.2 Fossil Fuel Subsidies and the Global Climate Change Regime 118 4 Promoting Fossil Fuel Subsidy Reform through Informal International Law 122 4.1 Voluntary Commitments 123 4.2 Transparency through Measurement, Reporting and Review 126 5 Conclusion 132 Chapter 6 Collective Entitlements over Energy 138 1 Introduction 138 2 Right to Permanent Sovereignty over Natural Resources 139 3 Human Rights Challenges to Energy Projects 142 3.1 General Human Rights 142 3.2 Environmental Human Rights 144 3.2.1 Substantive Rights 144 3.2.2 Procedural Environmental Rights 147 4 Challenges to Shared Responsibility 153 5 Concluding Remarks 155 References 156 Chapter 7 Non-Trade Concerns in International Economic Law: Can Trade Agreements Work for Renewable Energy? 160 1 Introduction 160 2 A Taxonomy of Renewable Energy Provisions in fta s 162 2.1 Scope of the Research 162 2.2 Developing the Taxonomy 165 2.2.1 Key Statements 167 2.2.2 Reservation of Policy Space 168 (a) Exceptions 168 (b) Exemptions 170 2.2.3 Cooperation 171 2.2.4 Regulatory Sovereignty 173 2.2.5 Trade Facilitation/Enhancement 174 2.2.6 Relationship with mea s 176 2.2.7 Dispute Settlement 176 2.3 Assessment of the Provisions over Time 177 3 Promoting Renewables through Free Trade Agreements? 179 3.1 From Exceptions to Exemptions 179 3.1.1 Different Conceptual Categories 180 3.1.2 The Allocation of the Burden of Proof 181 3.1.3 Interpretation 184 3.2 A New Subsidies Discipline on the Way? 185 4 Conclusions 188 References 188 Chapter 8 EU State Aid Law, wto Subsidies Disciplines and Renewable Energy Support Schemes: Disconnected Paradigms in Decarbonizing the Grid? 191 1 Introduction 191 2 EU Internal Energy Market Fundamentals at a Glance: The Interplay between Liberalization and Decarbonization 192 2.1 The Materialization of the EU Internal Energy Market 192 2.2 EU Energy Law and Policy since Lisbon 196 2.3 EU Energy Market Liberalization: Not Enough for the Scale Up of Renewable Energy 197 3 Legal and Policy Space for the Scale Up of Renewable Energy under EU Law 200 3.1 No Harmonization of Support Schemes on EU Level 201 3.2 The EU Legal Framework for Renewable Energy: Legitimate Exemptions to EU State Aid Disciplines 203 3.2.1 The EU Renewable Energy Directive 203 3.2.2 State Aid, the Guidelines, and the Block Exemption Regulation 205 3.2.3 The European Court of Justice: Lenient towards Support Schemes for the Sake of Public Interest 209 4 EU Law against the Background of wto Law: Disconnected Paradigms in Decarbonizing the Grid? 212 4.1 Defining Subsidies under the scm Agreement – An Overview 213 4.1.1 Prohibited, Actionable and Non-Actionable Subsidies 214 4.1.2 Contribution by a Government 215 4.1.3 Benefit to the Recipient 215 4.1.4 Specificity 216 4.2 wto Law and Renewable Energy Support Schemes 217 4.3 Inadequate Policy Space for Legitimate Policy Goals under wto Subsidies Disciplines 222 5 Conclusion 225 References 227 Chapter 9 Greening International Investment Arbitration 230 1 Introduction 230 2 The Early Years: No Room for the Environment in Investment Arbitration 232 2.1 The Use of Environmental Law by the Respondent State: Environmental Protection as a Shield 232 2.1.1 Justifying Alleged Expropriations 233 2.1.2 Justifying Alleged Breaches of Other Investment Clauses 236 2.2 The Attitude of Tribunals Towards Environmental Considerations: Turning a Blind Eye 237 3 The Environment Strikes Back: Investment Arbitration as a Forum for Environmental Protection? 239 3.1 Environmental Law Invoked by Both States and Investors: From Protective Shield to Double-Edged Sword29 239 3.1.1 The Investor’s Edge: Ensuring States’ Compliance with Environmental Law 239 3.1.2 The State’s Edge: Environmental Counterclaims 241 3.2 Environmental Considerations Guiding Tribunals’ Interpretation 243 3.2.1 Ruling on Environmental Counterclaims 243 3.2.2 The Interpretation of Standards of Protection 245 3.2.3 The Greening of iia s 247 4 Scratching the Surface: The Forces behind This Evolution 248 4.1 The Green Economy and Investment Arbitration 248 4.2 The Changing Role of Environmental Law in Investment Arbitration 249 5 Conclusions 251 References 251 Chapter 10 Concluding Remarks 253 References 256 Index 257 "This volume draws on a diverse range of international academic expertise and practical experience to enhance the reader's understanding of the shortcomings of existing international trade and investment law disciplines in their application to the multi-faceted nature of energy, and to explore possible avenues to bridge the gap between different areas of international law, with the ultimate goal of paving the way to a multi-faceted and comprehensive approach to the subject matter"-- Provided by publisher