International Energy Trade and Investor-State Arbitration: What Role for Sustainable Development?

Energy trade entails more than the purchase and sale of sources of power. It involves transactions involving equipment for production, international shipping and transmission, and an array of sophisticated financial products that seek to reduce risk or costs. Accompanying the internationalization of the energy market is an increasing number of international investment agreements (IIAs), which have facilitated the global growth of the industry. In addition to providing protection to investors from State Parties to treaties when they invest in corresponding State Parties, IIAs may also allow an aggrieved investor to arbitrate a claim against a Host State.Concerns have been raised that IIAs and investor-state arbitration are at odds with a perceived competing international norm, sustainable development. This chapter analyzes the applicable international legal regime with a specific focus on the text of IIAs, interpretive standards, and arbitral awards. It argues that in a number of IIAs there is room for arbitral tribunals to apply international law and give effect to sustainable development principles. The challenge is for tribunals to conduct an analysis in a disciplined way. The chapter sets forth three rules to help guide tribunals in this effort.