Abstract This article examines how Environmental Impact Assessments (EIAs) acquire legal significance in international investment law, with particular emphasis on arbitral practice. Although EIAs are firmly embedded in domestic environmental governance, express EIA provisions remain exceptional in international investment agreements (IIAs). Their relevance in investor–State dispute settlement (ISDS) instead arises principally through domestic law, the administrative record and the application of open-textured treaty standards. Drawing on a four-part typology – the sword, broken sword, shield and glass shield – the article demonstrates how investors and host States rely on EIA processes to advance competing arguments concerning legality, legitimate expectations, arbitrariness, regulatory justification and entitlement to treaty protection. It argues that EIAs do not possess a single or autonomous legal effect. Instead, their significance is relational, depending on the applicable treaty and domestic legal framework, the party invoking the assessment, the proposition it is used to establish and the integrity of the underlying regulatory process. Against this backdrop, the article concludes that stronger domestic EIA regimes and more precise treaty drafting could clarify the consequences of assessment and non-compliance, thereby improving the treatment of environmental regulation in investment disputes.
Abstract Crisis clauses in international investment treaties (IITs) are crucial to international investment law, especially in today’s conflict-ridden era. Existing scholarship classifies them into three types: basic, extended, and strict liability. This Article argues that such a classification obscures the significant variation in IITs, leading to an unfounded presumption of uniformity and generalisations in their application and interpretation. Through an empirical analysis of all publicly available IITs, this Article captures seven types of crisis clauses with additional intra-type variations. It then explains the implications of these findings with respect to: 1) treaty interpretation, arguing for a treaty-by-treaty interpretation rather than a uniform reading of the clauses, 2) setting a reform agenda, noting that framing strict liability clauses as less frequent in IITs may discourage their reform, and 3) treaty negotiation, arguing that the absence of some lenient clauses in the current scholarship may hinder their further adoption in IITs.
Abstract The reform of the World Trade Organization (WTO) has become a focal point of contemporary trade governance debates, with the US re-engaging the institution while simultaneously challenging its foundational principles. This article critically examines recent US positions on WTO reform, specifically proposals to dilute the most-favoured-nation principle, recalibrate special and differential treatment, render security exceptions fully self-judging, and exclude contemporary trade concerns from multilateral governance. Situating these interventions within a broader theoretical account of hegemonic power and international law, the article argues that the US under President Trump is acting as a hostile change agent seeking to reshape, rather than merely reinterpret, WTO norms in response to a global power rivalry with China. While framed as necessary modernization, these proposals risk transforming a rules-based multilateral trading system into a power-based order and, in the long run, legitimizing it, with disproportionate adverse effects on developing countries. The US reform agenda risks undermining the very order it once built, weakening multilateral constraints while opening space for greater global instability and rival hegemonic influence.
