|
The importance of substantial and sustained investment in the energy sector cannot be overstated. The protections offered to private investors through the global network of bilateral investment treaties (BITs), including investor-state dispute settlement (ISDS) are particularly significant for the energy sector. However, the ISDS system that has been so significant in encouraging investment is under attack. An intense and public debate is on foot. This article highlights the ways in which the investment treaty system and ISDS are developing to achieve an appropriate balance between private rights and public interests, particularly given recent developments in sustainable development,responding to climate change, and the promotion and protection of human rights. The article surveys reactive developments in substantive standards of protection under BITs, as well as the ways in which the existing system is capable of self-calibration to respond to public concerns, namely in respect of transparency, state counterclaims,
legislative discretion, and the emergence of a new generation of BITs addressing the
public/private divide. Finally, the authors consider how arbitration, including ISDS,
has contributed to an equally important public interest, the growth of the rule of law
around the world. The authors conclude that while a range of improvements to the
investment treaty system can and should be considered, the system as a whole and
ISDS are vital components of the energy industry, integral to our future energy security and key contributors to global stability through their promotion of the rule of law
|
Kembali