A Multifaceted Approach to Trade Liberalisation and Investment Protection in the Energy Sector

Half Title
Series Information
Title Page
Copyright Page
Contents
List of Tables
Notes on Contributors
Chapter 1 When Turning a Blind Eye Is No Longer an Option: The Importance of Tackling Energy Trade and Investment Law from Multiple Fronts
	1 Introduction
	2 International Economic Law and the Challenges of Capturing the Essence of Energy
	3 Economic v. Non-Economic Values: Between Synergy and Conflict
	4 Structure of the Book
	References
Chapter 2 Dissecting the Green Component of 21st Century Industrial Policy in the Energy Sector: Implications for the wto System
	1 Introduction
	2 How Green Is Green Industrial Policy? Explaining Patterns in wto Disputes
		2.1 Green v. Industrial Narrative in re Government Support Schemes
		2.2 Green v. Industrial Narrative in re Trade Remedy Actions
	3 Assessing Mutual Supportiveness in Light of the Outcomes of wto Disputes
		3.1 re Subsidies under wto Law
		3.2 re Trade Remedies under wto Law
	4 What Way Forward?
	5 Conclusions
	References
Chapter 3 Stabilisation Clauses in Long-Term Investment Contracts: Their Evolution and Their Application by Investment Tribunals
	1 Introduction
	2 The Evolution of Stabilization Clauses
		2.1 From Indispensable Protection to Criticized Practice
		2.2 Stabilisation Clauses in the Era of Corporate Social Responsibility
			2.2.1 From Freezing Clauses to Economic Equilibrium Clauses
			2.2.2 From Stabilisation Clauses with a Broad Scope of Application to Limited Stabilisation Clauses
	3 The Application of Stabilisation Clauses by International Tribunals
		3.1 Early Cases: The Legality of Stabilisation Clauses
		3.2 Stabilisation as a Vested Right
		3.3 The Interplay between Stabilisation Clauses and International Investment Treaty Protection
			3.3.1 Breach of Stabilisation Obligation as Expropriation of the Stabilised Right
			3.3.2 Violation of the Stabilisation Clause Amounting to a Breach of the Umbrella Clause of a bit
			3.3.3 A Breach of Stabilisation Clause as a Breach of the Fair and Equitable Treatment or the Protection and Security Standard
	4 Conclusions
	References
Chapter 4 The Implications of Sustainable Development Goals for Energy Trade and Investment
	1 Introduction
	2 The sdgs and Energy
	3 International Law and Sustainable Energy
	4 The sdgs, Trade, and Investment
	5 The sdgs and International Trade Law
		5.1 Potential for the sdgs in the Jurisprudence of the wto’s Dispute Settlement Body
	6 The sdgs and International Investment Law
		6.1 Potential for the sdgs in the Jurisprudence of Investment Tribunals
	7 Conclusions
	References
Chapter 5 The International Governance of Fossil Fuel Subsidies as Testing Ground for the Fragmentation and Deformalisation of International Law?
	1 Introduction
	2 Mapping the Institutional Complex
	3 Promoting Fossil Fuel Subsidy Reform through International Legal Regimes
		3.1 Fossil Fuel Subsidies and the Global Trade Regime
		3.2 Fossil Fuel Subsidies and the Global Climate Change Regime
	4 Promoting Fossil Fuel Subsidy Reform through Informal International Law
		4.1 Voluntary Commitments
		4.2 Transparency through Measurement, Reporting and Review
	5 Conclusion
Chapter 6 Collective Entitlements over Energy
	1 Introduction
	2 Right to Permanent Sovereignty over Natural Resources
	3 Human Rights Challenges to Energy Projects
		3.1 General Human Rights
		3.2 Environmental Human Rights
			3.2.1 Substantive Rights
			3.2.2 Procedural Environmental Rights
	4 Challenges to Shared Responsibility
	5 Concluding Remarks
	References
Chapter 7 Non-Trade Concerns in International Economic Law: Can Trade Agreements Work for Renewable Energy?
	1 Introduction
	2 A Taxonomy of Renewable Energy Provisions in fta s
		2.1 Scope of the Research
		2.2 Developing the Taxonomy
			2.2.1 Key Statements
			2.2.2 Reservation of Policy Space
				(a) Exceptions
				(b) Exemptions
			2.2.3 Cooperation
			2.2.4 Regulatory Sovereignty
			2.2.5 Trade Facilitation/Enhancement
			2.2.6 Relationship with mea s
			2.2.7 Dispute Settlement
		2.3 Assessment of the Provisions over Time
	3 Promoting Renewables through Free Trade Agreements?
		3.1 From Exceptions to Exemptions
			3.1.1 Different Conceptual Categories
			3.1.2 The Allocation of the Burden of Proof
			3.1.3 Interpretation
		3.2 A New Subsidies Discipline on the Way?
	4 Conclusions
	References
Chapter 8 EU State Aid Law, wto Subsidies Disciplines and Renewable Energy Support Schemes: Disconnected Paradigms in Decarbonizing the Grid?
	1 Introduction
	2 EU Internal Energy Market Fundamentals at a Glance: The Interplay between Liberalization and Decarbonization
		2.1 The Materialization of the EU Internal Energy Market
		2.2 EU Energy Law and Policy since Lisbon
		2.3 EU Energy Market Liberalization: Not Enough for the Scale Up of Renewable Energy
	3 Legal and Policy Space for the Scale Up of Renewable Energy under EU Law
		3.1 No Harmonization of Support Schemes on EU Level
		3.2 The EU Legal Framework for Renewable Energy: Legitimate Exemptions to EU State Aid Disciplines
			3.2.1 The EU Renewable Energy Directive
			3.2.2 State Aid, the Guidelines, and the Block Exemption Regulation
			3.2.3 The European Court of Justice: Lenient towards Support Schemes for the Sake of Public Interest
	4 EU Law against the Background of wto Law: Disconnected Paradigms in Decarbonizing the Grid?
		4.1 Defining Subsidies under the scm Agreement – An Overview
			4.1.1 Prohibited, Actionable and Non-Actionable Subsidies
			4.1.2 Contribution by a Government
			4.1.3 Benefit to the Recipient
			4.1.4 Specificity
		4.2 wto Law and Renewable Energy Support Schemes
		4.3 Inadequate Policy Space for Legitimate Policy Goals under wto Subsidies Disciplines
	5 Conclusion
	References
Chapter 9 Greening International Investment Arbitration
	1 Introduction
	2 The Early Years: No Room for the Environment in Investment Arbitration
		2.1 The Use of Environmental Law by the Respondent State: Environmental Protection as a Shield
			2.1.1 Justifying Alleged Expropriations
			2.1.2 Justifying Alleged Breaches of Other Investment Clauses
		2.2 The Attitude of Tribunals Towards Environmental Considerations: Turning a Blind Eye
	3 The Environment Strikes Back: Investment Arbitration as a Forum for Environmental Protection?
		3.1 Environmental Law Invoked by Both States and Investors: From Protective Shield to Double-Edged Sword29
			3.1.1 The Investor’s Edge: Ensuring States’ Compliance with Environmental Law
			3.1.2 The State’s Edge: Environmental Counterclaims
		3.2 Environmental Considerations Guiding Tribunals’ Interpretation
			3.2.1 Ruling on Environmental Counterclaims
			3.2.2 The Interpretation of Standards of Protection
			3.2.3 The Greening of iia s
	4 Scratching the Surface: The Forces behind This Evolution
		4.1 The Green Economy and Investment Arbitration
		4.2 The Changing Role of Environmental Law in Investment Arbitration
	5 Conclusions
	References
Chapter 10 Concluding Remarks
	References
Index