International Construction Law Review
INVESTMENT TREATIES LIMIT THE CRITICAL RIGHT OF STATES TO PRESERVE THE ENVIRONMENT AND PROTECT COMMUNITY RIGHTS IN A MINING CONTEXT: OPPOSITION TO THE MOTION*
Nigel Blackaby, KC**
Partner, Freshfields Bruckhaus Deringer LLP
INTRODUCTION
As Agatha Christie noted in “Murder at the Vicarage”, I often wonder why the whole world is so prone to generalise. Generalisations are seldom, if ever, true and are usually utterly inaccurate.
The motion is based on the false premise that all investment treaties are the same. We have seen an astonishing development of such treaties in the past decade in terms of their treatment of the environment and community rights. Since the first generation of investment treaties was signed, sensibility towards the environment and the rights of communities and first nations has increased. And so have the treaty texts which have now become much more protective and deferential towards a state’s assessment of environmental and community concerns. For example, whilst the 2004 Netherlands Model BIT provided no specific provisions on environmental measures or public health,1 the 2019 model contains an exception that no obligations in the agreement shall affect the right of contracting states to regulate for the protection of public health, safety or the environment.2
* This paper was delivered at the ITA Conference on International Arbitration in the Mining Sector, Toronto, Canada, 9 March 2023. Mr Blackaby was asked to oppose the motion as an advocacy and debating exercise and the views expressed here do not necessarily reflect his views or those of his firm.
** Nigel Blackaby KC, Partner, Co-Head of Latin America Practice, Freshfi elds Bruckhaus Deringer LLP.
1 Netherlands Model BIT, 2004, https://jusmundi.com/en/document/pdf/treaty/en-agreement-on-encouragement-and-reciprocal-protection-of-investments-between-and-the-kingdom-of-netherlands-netherlands-model-bit-2004-monday-1st-march-2004 (last accessed 19 May 2023).
2 Netherlands Model BIT, 2019, article 2(2), https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5832/download (last accessed 19 May 2023). Note the 2012 US Model BIT contained a similar carve out for public welfare objectives including the environment: “Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriations.” However, this only applies to indirect expropriation, not the FET standard or other treaty obligations.
Pt 3] Opposition to the Motion
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