| International investment is an important support to the economic development of one country, it’s so important that it has become an indispensable element to the development of global economic. However, while countries gain economic benefits in international investment, they have to pay attention to the negative effects that are brought about by investment activities to the environment. With the occurrence of many environmental accidents, which were caused by international investment, people began to pay more and more attention on the relationship between international investment and environmental protection. 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 circumstance is of great importance.Following The Kyoto Protocol coming into force in 2005, the global environment problem becomes hot spots cared by the public again. More and more countries begin to realize the rich meaning of ‘development’, and they lay more emphasis on the sustainable development of national economy and environmental effect thereof. Under this background, the incorporation of environmental clauses into all sorts of investment agreements becomes an important characteristic of the newly signed agreements, which results in legal practice concerning solving investment liberalization and environment protection. In respect to the domestic law, the environmental legislation of each state simultaneously tends to be restricted and the legislation protection tends to be strict. Therefore, to protect domestic environment, the host country may take measures that violate the protection duties of the international investment convention and be challenged by the foreign investors. Hence, how to balance the interest relationship between the host state and investors becomes one of the difficult issues which need to be resolved in the investment agreement.NAFTA, as the first free trade agreement incorporating environment protection clause, is horned as ‘the greenest free trade agreement’. It establishes that the host country has the right to take measures for protecting environment and the duty of not reducing the environmental standard, which has good demonstration and practical effect to the environmental clause of investment agreements thereafter.However, since its own legislation defects and the effect arising from external reasons, it is very difficult for the host country to take measures for protecting national environment interests and other social public interests.After experiencing and summarizing the embarrassment of environment protection under the NAFTA, the later environment clauses in investment agreements obtain great progress and improvement. The latest development is the Model BIT enacted by the U.S. in 2012. It was amended four times and its system and framework have been relatively complete. Nowadays, many international investment agreements and multilateral or bilateral investment agreements in the world are on the basis of the U.S. Model BIT. Therefore, it is necessary to make a specific analysis and study regarding to the U.S. Model BIT, so as to enact our own Model BIT or to provide theory and practical basis for complete environment clauses of international investment agreements.The situation caused by China’s overseas investment has already become the focus of other nations all over the world, along with increasing development of China’s foreign investment. The role China plays in international investment market is more than a big investment destination after America, meanwhile China is the world’s third biggest country in capital export. Nowadays, China’s economic development needs plenty of natural resource so that the direction of China’s foreign direct investment is absolutely apparent, such as Africa, Oceania, and Latin America, which own rich natural resources.However, the law system of the host country may be not good enough and the standard of environmental protection is low so that the investors probably confront with certain political risk that the government takes actions to protect the environment and raise the protection standard.At the same time, China, as the host country, is very late in caring about the environment and has already signed many bilateral and multilateral agreements without terms on environment protection, which will make China face with great risk of suit and economy, and it’s also harmful to China’s environmental protection. The disadvantage in China’s legislation and juridical practice also make it difficult to balance the relationship between the benefit of investment and environment protection.Combined with NAFTA, U.S. Model BIT, and some related cases, this thesis is trying to simply introduce the environmental terms in the international investment treaties, analyze the status quo and development of such terms. Combined with the treaties China has signed, the author want to have a discussion about how to bring in the foreign successful experience to perfect the related legislations and negotiation of investment agreement.This thesis attempts to briefly overview the existing environmental provisions in international investment agreements, combined with several representative cases under NAFTA and a brief introduction to U.S. Model BIT, the author wants to make an analysis to the present situation and development of environment provisions in international investment agreements. Hoping to provide some experience and beneficial thinking for our country’s legislation and investment negotiations.In addition to the introduction section, this paper consists four parts. The main research work of the thesis is aimed at the occurrence of environment clauses in investment agreements- the emergence- status quo- recent advance- the significance for reference to China, and discusses the above respectively.The introduction part mainly expatiates the background and meaning of the text, the literature review, the major research method etc. and proposes the value of environment clauses.In the occurrence of environment clauses section, mainly introduces the background of environment provisions in international investment treaties. As the emerging countries rising after World War II, the irreconcilable contradictions between its sovereign demand for resources and the former suzerain company already obtained the franchise. Emerging countries government wants to achieve his own sovereignty of national resources without paying any costs, while former suzerain wants to keep its existing investment, at the same time it is also a kind of encouragement for foreign investment.However, the massive tax or nationalized cases often occurs, which push the Britain and the United States and other major capital export countries began to set up a new order of international investment, and promote the development of international investment agreements upon it.But in many early cases, most of the final ruling of the arbitration tribunal was partial. The host country’s environment benefits such as social interests were often neglected, two typical cases were presented to illustrate this point. The repeatedly occurred cases make it useful to add environment protection clauses into investment treaties and environment clauses also arises at this historic moment.In the section of the present situation, this paper takes NAFTA as an example to illustrate the present situation and the shortcomings of environment protection clauses.Then combined with the context of three classic cases under NAFTA, the author wants to analysis the root cause that why NAFTA can’t meet the requirements of environmental protection.In the next part, the author mainly introduces the recent environmental terms and conditions of the new development in international investment treaties. With the constant improvement of the people’s environmental protection consciousness, plus a range of environmental disasters, which are caused by investment activities, people begin to make it clear that NAFTA can’t meet the requirements of environmental protection. The world made a lot of efforts, one of the most representative and most successful one is the 2012 U.S. Model BIT. In this paper, the author makes an introduction in detail about the changes compared with 2004 Model BIT. Finally, make a brief analysis about the deficiencies that it still keeps.The last section of this paper introduces the environment provisions in international investment agreements with China. At first, introduces the necessity of taking in environment provisions in international investment treaties. Secondly, introduces the present legislation and law enforcement on domestic law level and then analyzing the deficiencies. Finally on the basis of the above, the author puts forward some suggestions and countermeasures for solving China’s current problems.Epilogue part aimed to make a simple summary of the article and stress the situation that China is coming with. Our country should make a clearing understanding about the role we play in international investment market, and timely adjust our legislation structure, strengthen the learning of foreign legislation and judicial practice. So as to protect our environment benefits and China’s foreign investment interest at the same time. |
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