Investor-State
dispute settlement has been criticized for contributing to a “regulatory chill” effect,
which has resulted in reluctance by States to adopt effective measures aimed at
addressing climate change out of concern that such measures may prompt
investment claims. The potential for these claims has thus placed States
between a rock and a hard place. The authors propose that a number of existing
customary international law doctrines can contribute to affirming the right of States
to regulate in the public interest in order to address the climate crisis, as
well as other textual treaty-based approaches that may be employed.