The Study On Balancing Environmental Benefits In International Investment Regulation

There has been an increasing impact between investment liberalization and environmental protection these days. Meanwhile, the inter-restriction of international investment law and international environmental protection law has also become more and more complex. Investment liberalization could not only enhance the optimization of global resources and environmental factors' allocation, but also give birth to the emerging environmental industry, which makes great efforts to promote the sustainable development of the host country. At the same time, investment liberalization may make it easier for developed countries to transfer polluting industries to developing countries, and to over-exploit their natural resources. Hence, the study on environmental legal issues based on international investment rules and regulations, and how to balance the investment protection and environmental benefits under the current international circumstances is of great importance.In the second part, this thesis tries to make a detailed analysis of the first green free trade agreement "the North American Free Trade Agreement"(NAFTA) with its environment-related clauses and institutions, which had been extensively adapted in the international society, based on the historical process of the incorporation of environmental issue into international investment treaties. At last in this part, the thesis summarizes the environmental legislation model in international investment law from three aspects:the preamble, special provisions and exceptions. The characteristic of the legislation model has also been concluded.The third part of this thesis discuss the reason why has the environmental goal been specially stressed, but suffers from repeated failure in arbitration practices, through the analysis of three classical cases in north American free trade area, which are Ethly Inc. v. Canada, Metalclad Inc. v. Mexico and S.D.Myers Inc. v Canada. The third part points out the reason are:first, the environmental clause lacks legal binding; second, the environmental clause is ambiguous in its wording; and third, the exception clauses are restricted being invoked by other investment protection clauses. The last part of the thesis proceeds from the international situation that China faces. When analyzing the current mechanism of poising the investment and environment interests in China's international investment agreement, the deficiencies of the mechanism has been figured out. To the remedies, the writer has proposed certain suggestions for the regulation of the environment problems in the international investment agreement from international and domestic levels. Among them are the measures to insert exceptions of environmental issue into the national treatment clause, to draft an environment cooperation agreement especially, to make the legal validity of the environment cooperation agreement mentioned above vs. that of the investment agreement clear, to add the articles of environment standards in the investment agreement, to conduct a strict domestic environment standard at home and take some environment measures in a flexible way, etc.