1 Introduction
1.1 Is This "Deal" Really Working? Investment Treaty Disputes in a Warming World (the Context)
1.2 Is It Possible to Achieve Harmonization? Fragmentation of Contemporary Young Systems in the Same Context of Global Warming {the Problem and the Research Question)
1.3 Shielding Harmonization from Arbitrariness: Reductionist Legal Positivism (Methodological Package)
1.4 Harmonization Within the Limits of the Operation of the Investment Treaty Law: Enhancing the Efficacy of the Global Climate Interest Through the Private and Public Dimensions of the System (Premises, Terminology, Scope, and Value of the Study)
1.5 Relevance, Content Interpretation, and Law Ascertainment in Investment-Treaty-Climate-Change-Related Disputes: Pre(logical)interpretative Phase, Orthodox Approach, and Heterodox Approach (the Content and Hypotheses)
References
Part I Relevance of the Climate Change International Legal Framework in Investment Treaty-Climate Change Disputes: Pre(Logical)Interpretative Phase
2 Iura Novit Arbiter and the Application of the Climate Change International Legal Framework to Investment Treaty Disputes
References
3 Formal Relevance of the Climate Change International Legal Framework in Investment Treaty Disputes: Defining the System as a Process of Multi(syncretic)lateralization
3.1 Multilateralization of the Investment Treaty Law: Envisaging the Global Climate Interest in Investment Treaty-Climate Change Disputes
3.1.1 The Process of Multilateralization: Describing Investment Treaty Law as a Legal System That Regulates Community Interests
3.1.2 Criticism to the Definition Multilateralization: Understanding Community Interest as a Notion That Embraces the Global Climate Interest
3.2 Syncretism of the Investment Treaty Law: Envisaging the Global Climate Interest in Investment Treaty-Climate Change Disputes
3.2.1 Distinguishing Multi(syncretic)lateralization from the Comparative Public Law Methodology: Allowing the Possibility for a Direct Application of the Climate Change International Legal Framework
3.2.2 Distinguishing Multi(syncretic)lateralization from (International) Public Law Substantive Validity Theories: Preserving the Identity of International Investment Law
3.2.3 Distinguishing Multi(syncretic)lateralization from Kulick's Global Public Interest Theory: Reformulating the (Global) Public Interest Challenge
3.2.4 Investment Treaty Arbitration as International Public Law: Revealing the Climate Change Legal Framework as Part of the Investment Treaty Law System Beyond Topical Rhetoric
3.3 Concluding Remarks on Multi(syncretic)lateralization and the Formal Relevance of the Climate Change International Legal Framework in the Investment Treaty Law
References
4 Material Relevance of the Climate Change International Legal Framework in Investment Treaty Law: Unveiling Climate Change Disputes in Investment Treaty Law
4.1 Economic Approach to the Relationship Between the Investment Treaty Law and the Climate Change Law: Framing the Conflicts and Synergies
4.1.1 The Rationale of the Investment Treaty Law and Climate Change: Synergetic Relationship
4.1.2 Regulatory Chill and Climate Change: Conflictual Relationship
4.1.3 Considering the Economic Rationale of the Investment Treaty Law and the Risk of Regulatory Chill in International Investment Arbitration Decisions: Concluding Remarks on Law and Economics
4.2 A Sociopolitical Approach to the Relationship Between the Investment Treaty Law and the Climate Change Law: The Contribution of Global Administrative Law and International Critical Studies
4.2.1 The Investment Treaty Law System as Climate Change Governance: The Contribution of Global Administrative Law
4.2.2 The Incompatibility of Investment Arbitration Law with the Climate Change Legal Framework's Objectives: The Contribution of Postmodern Critical Studies
4.2.3 The Survival of the Investment Treaty Law and Epistemic Communities: Concluding Remarks on the Sociopolitical Approach to the Relationship Between Investment Treaty Law and Climate Change
References
Part II Gravitational Power of the Climate Change International Legal Framework over the Bit Content-Interpretation: Orthodox Approach to Harmonisation
5 The Orthodox Approach and the Sources of Law in Investment Treaty-Climate Change Disputes
References
6 Orthodox Approach to the Expropriation Standard in Investment Treaty-Climate Change Disputes: Determining the Breach Through the Sacrificial-Lamb Doctrine
6.1 Pliability of the Expropriation Standard in a Climate Change Context: Swinging Between the Sole-Effects Doctrine and the Police-Power Doctrine
6.1.1 The Temptation to Adopt the Police-Power Doctrine in Expropriatory Climate Change Disputes and Its Drawbacks: Exposing the Failure of Methanex/Tecmed-Inspired Theories to Harmonize the Expropriation Standard with Climate Interest
6.1.2 Adaptation of the Sole-Effects Doctrine to the Expropriation Standard in Expropriatory (Climate-Change-Related) Disputes and Its Limitations: Metalclad as Inspiration to Unravel Content Interpretation of the Expropriatory Standard
6.2 Orthodox Approach to the (Ordinary) Expropriation Standard in a Climate Change Context: Tempering the Sole-Effects Doctrine Through the Sacrificial-Lamb Doctrine
6.2.1 (Dis)proportionality of the Impact on the Investor as a Common Basis for Expropriation: Demonstrating the Conformity of the Sacrificial-Lamb Doctrine to the Trend of Expropriatory (Environmental) Awards
6.2.2 Consistency of the Sacrificial-Lamb Doctrine with the Climate Change International Legal Framework's Context: Bridging the Gaps of the Sole-Effects Doctrine Through the Concept of (Dis)proportionality of the Impact on the Investor
6.3 The Limits of the Orthodox Approach to Promote the Global Climate Interest: Concluding Remarks on the Interpretation of the Expropriation Standard in Investment Treaty-Climate Change Disputes
References
7 Orthodox Approach to the Fair and Equitable Treatment Standard (FET) in Investment Treaty-Climate Change Disputes: Determining the Breach Through the (Dis)Proportionality/(Un) Reasonableness of the Measure
7.1 (Un)Reasonableness/(Dis)Proportionality in RESS Disputes: Discovering (Non)Capriciousness, (Un)Predictability and (In) Essentiality as a Pattern
7.1.1 Polysemic Character of the Concepts of Proportionality and Reasonableness in RESS Disputes
7.1.2 Technical Definition of (Un)Reasonableness/(Dis) Proportionality: Unfolding the Concepts of (Non) Capriciousness, (In)Predictability and (In)Essentiality in RESS Disputes
7.1.3 Ambiguity of Specific Commitments and the Need for a Formal and Material Assessment of Essentiality: Concluding Remarks Concerning the Determination of Reasonableness/Proportionality in RESS Disputes
7.2 Generalisation of the Application of the Pattern of Proportionality/Reasonableness to all Investment Treaty-Climate Change Disputes
7.2.1 The Determination of (Non)Capriciousness in FET Climate Change-Related Disputes: Underpinning the Standard of Arbitrariness as Threshold to Guarantee Regulatory Flexibility
7.2.2 (Un)Predictability and (In)Essentiality in FET Climate Change-Related Disputes: The Creation of Legitimate Expectations in a Climate Change Context Stemming from Non-Formal Representations
7.3 The Rejection of the Public Law-Modeled (Interest-Weighing) Proportionality Test and the Limits of the Orthodox Approach; Concluding Remarks on the Orthodox Approach in FET Climate Change-Related Disputes
7.3.1 The Drawbacks of a Public Law-Modeled (Interest-Weighing) Proportionality Test in the Interpretation of the FET Standard in the Context of Climate Change: Emphasising the Importance of a High Level of Deference
7.3.2 The Limits of the Orthodox Approach in FET Climate Change Disputes: Impossibility of Directly Applying Principles of the Climate Change International Legal Framework
References
Part III Osmosis of the Global Climate Change International Legal Framework into Investment Treaty Law Through Law Ascertainment: Heterodox Approach to Harmonisation
8 Heterodox Approach and the Sources of Law in Investment Treaty-Climate Change Disputes
References
9 Direct Application of the Precautionary Principle in Investment Treaty-Climate Change Disputes: Deploying the International Defence of Necessity as a Rule of Law Ascertainment
9.1 The International Defence of Necessity in Investment Treaty-Climate Change Disputes: Article 25 of the DASR as a Rule to Determine the Direct Application of the Precautionary Principle
9.1.1 The Recognition of Non-Economic Interests Within the Scope of Necessity in Case Law: Embracing the Necessity of Precautionary Climate Change Measures Within the Operation of the Investment Treaty Law System
9.1.2 The Adaptability of the Climate Change Precautionary Principle to the Conditions of Article 25 DASR: Adopting a Flexible Interpretation of the Requirements of the International Defence of Necessity
9.2 General Exceptions in Investment Treaty-Climate Change Disputes: Exploring the Absence of Breach of BIT Obligations When Adopting Climate Change Precautionary Measures
9.2.1 The Conformity of Climate Precautionary Measures to the General Exceptions Stemming from the (Non) Relationship Between the Exception and Article 25 DASR: Interpretation of the Subject Complement of the Measure
9.2.2 The Conformity of Climate Change Precautionary Measures to the Exceptions Stemming from the Range of Legitimate Objectives Covered by the Text: Direct and Indirect Embrace of the Climate Interest
9.3 Concluding Remarks on the Direct Application of the Climate Change Precautionary Principle to Investment Treaty Law Disputes: Framing Necessity as an Instrument for Weighting Global Public Interests and the Exceptionality of Its Application
9.3.1 Independence of the International Defence of Necessity and General Exceptions in Investment Treaty-Climate Change Disputes: Conceptual, Dimensional and Methodical Differences
9.3.2 The Counter Rationale of the International Defence of Necessity and the General Exceptions in Investment Treaty-Climate Change Disputes
References
10 Direct Application of the Common But Differentiated Responsibilities and Respective Capabilities Principle (CBDRRC) in Investment Treaty-Climate Change Disputes: Vindicating a Differential Approach to Compensation
10.1 Suitability of the CBDRRC to the Practice of the Investment Treaty Law Tribunals: Demystifying the Full Compensation Principle in Investment Treaty Law
10.1.1 Limitations to the Full Compensation Principle Arising from the Text of the (Ordinary) Expropriation Standard: Paving the Way for the Application of the CBDRRC Through the Identification of Retributive Justice Elements in the Compensation
10.1.2 Limitations to the Full Compensation Principle Arising from Secondary Rules: Confirming the Suitability of the CBDRRC to the System's Operation Stemming from a Differentiation Approach to Compensation
10.2 The Operationalisation of the CBDRRC in Investment Treaty-Climate Change Disputes
10.2.1 Exceptional Application of the CBDRRC in Investment Treaty-Climate Change Disputes: Topical Connection Between Investment Treaty Law and the Climate Change International Legal Framework
10.2.2 Translation of the CBDRRC Principle to Investment Treaty Law Through International Civil Liability Devices and Dynamic Analysis of the Conditions of the Parties
10.3 Concluding Remarks on the Direct Application of the CBDRRC to Compensation: Inadequacy of a Global Public (Environmental/Climate) Interest Defence and the Systematicity of a Differential Approach
10.3.1 The Rejection of a Global Public (Environmental/Climate) Interest Defence to Modulate Compensation in Investment Treaty-Climate Change Disputes: Emphasising the Importance of Distinguishing Between the Proportionality of the Measure and the Proportionality of the Compensation
10.3.2 The Systematicity of the Exceptional Application of a Differential Approach to Compensation in Investment Treaty-Climate Change Disputes: The Proportionality of Compensation as Rationale and Counter Rationale
References
11 Conclusions
11.1 Investment Treaty Law Is a Multi(syncretic)lateralized System that Comprises the Climate Change International Legal Framework Without Losing Its Identity {Formal Relevance)
11.2 Investment Treaty Disputes Comprise Climate Change Disputes that Stem from the Operation of the Investment Treaty Law (Material Relevance)
11.3 The Sacrificial Lamb Theory in Investment Treaty-Climate Change Disputes Harmonises the Operation of the Expropriation Standard with the Climate Change International Legal Framework
11.4 The Determination of the Proportionality/Reasonableness of Host State's Measures in the Context of Global Warming Harmonises the Operation of the FET Standard with the Climate Change International Legal Framework
11.5 The Direct Application of the Climate-Change Precautionary Principle Through the International Defence of Necessity and the Interpretation of General Exceptions in a Global Warming Context Harmonises the Investment Treaty Law with the Climate Change International Legal Framework
11.6 The Direct Application of the Common but Differentiated Responsibilities and Respective Capabilities Principle (CBDRRC) to the Compensation Through International Liability Norms Harmonises the Investment Treaty Law with the Climate Change International Legal Framework
11.7 Concluding Remarks: Reasons to Be Optimistic About the Harmonisation of the Investment Treaty Law and Climate Change Law
Reference