The article draws
inspiration from two seminal Dutch court decisions, Urgenda Foundation v. the
Netherlands and Milieudefensie v. Shell, regarding the incorporation of
environmental protections into investment arbitration. This approach is
supplemented by the applications of tools found under the scope of investment
arbitration, such as the legality and legitimate expectations doctrines, as
well as international law, such as interpretations under the Vienna Convention
on the Law of Treaties 1969, the Paris Agreement, and several soft law
instruments. The article also discusses the current framework for international
investment disputes and arbitration and draws attention to the limited effect
‘new-generation’ bilateral investment treaties (‘BITs’) have had in regards to
shifting environmental protection norms, and how new and old generation BITs
can find their footing in the new age of strengthened environmental protection
requirements. All-in-all drawing from the decision-making of Dutch courts, and
other international tribunals, the article advocates for an altogether balanced
approach, where environmental protections under international and domestic
instruments can be used in the decision-making processes of international
investment tribunals without eroding the trust of investors in the system.