A Study Of Environmental Clauses In Bilateral Investment Treaty

With the deep development of economic globalization,the position of international investment in world economic activities is even more important.The environmental problems caused by international investment are increasingly becoming more and more important.Environmental protection clauses that aim to balance investment interests with public interests are increasingly seen in BITs.Although the environmental clauses have made some progress after several decades of development,no matter from the perspective of the text or the arbitration practice,the existing environmental clauses cannot balance the relationship between investment protection and environmental protection.How to find the delicate balance between investment and environment and realize the harmonious coexistence between man and nature in the field of international investment still needs constant exploration.At present,China is also facing the issue of balance between investment and environment.Researching environmental provisions will help China to coordinate the relationship between investor interests and environmental interests.The first part gives a brief overview of the environmental provisions in the BIT.Firstly,from the perspective of the environmental clauses,followed by the timeline,a typical bilateral investment treaty was drafted.The environmental clauses were sorted out from earlier and later stages.It was found that environmental clauses evolves from the monotony to the rich,the content evolves from abstract to concrete.The second part is a comprehensive review of the textual content of existing environmental clauses.If based on the type of terms,the existing environmental clauses can be divided into four categories: the preambular clause is sworn in;the exception clause leaves room for the host country's environmental regulatory rights;the special clauses first set out the party's substantive rights and obligations;and the procedural clauses The settlement of jurisdiction and the application of laws were pointed out to resolve environmental disputes.However,these environmental clauses are still lacking in quantity.At the same time,the terminology is weak and weak,the concept is not clearly defined,and the nature of "soft law" is fully revealed.The natural malpractices of all these texts have laid a hidden danger for the arbitration practice of environmental clauses.The third part makes an in-depth analysis of the environmental issues in arbitration practice.The defects in the design of the current investor-state dispute resolution mechanism make it extremely low for investors to initiate the arbitration,which can easily lead to the phenomenon of abuse of investors.In addition,the “commercial” color of traditional arbitration procedures makes the public environment arbitrated.It can only be done in an opaque state.In addition to procedural issues,the various investment protection clauses are also worthy of attention because of the restrictions on environmental clauses.This is a natural consequence of the lack of rigid environmental clauses.From various arbitration practices,it is also possible to see the arbitral tribunal's priority in protecting investment values.From the procedure to the entity,the host country's desire to exercise reasonable and non-responsive environmental measures can be an obstacle.The fourth part is based on China's actual conditions,and aims at the simultaneous dual status of China as a capital importing and exporting country,combining advanced international legislation,and puts forward specific countermeasures for the problems existing in China's applicable environmental clauses.It is hoped that in the future,it will be helpful to improve the environmental provisions of China's bilateral investment agreement.