The role of international investment law in fostering sustainable investment in the marine environment: an analysis on the most recent trends in treaty drafting and investor-state dispute settlement

The inclusion of sustainable development provisions in international investment agreements (IIAs) has proliferated. Compared with the initial purpose of investment protection, the creation of IIAs has been moving towards balancing the interest of investors and the right of states to regulate for public purposes. Of these, the environment, including marine environment, has been indicated among the public interests that states aim to protect. Yet, however, the extent to which IIA provisions could foster responsible investment remains unclear, given the different approaches reflected in IIAs and the limited reference to domestic law and regulations in this area. At the same time, even if sustainable development provisions could provide the legal basis for the tribunal to consider environmental protection when settling investor-state disputes (ISDS), there has not been a uniform approach to tackle these provisions or the concept of public interest. Furthermore, given the fact that the marine environment is increasingly affected by climate change whilst investment could contribute to the mitigation and adaptation of climate change adverse effects, there is a need to promote sustainable investment in this field. On such a basis, this paper aims to conduct an analysis on the most recent trends in IIA treaty drafting as well as investor-state dispute settlement to assess the role of international investment law in fostering sustainable investment in the marine environment, thereby providing recommendations to further promote such role in future IIAs and ISDS cases.