Study On Environmental Clauses Of Trade And Investment Agreements

At present,the liberalization of investment has become a new trend in the area of trade and investment.The developed countries dominated by the United States are strongly advocating a new round of international trade and investment rules.In the traditional trade and investment rules,the sole purpose of trade and investment is the actual economic benefits,and does not care about the impact of environmental problems in the development of trade and investment.In order to maximize profits,developed countries transfer the heavily polluting industries to the developing countries,sacrificing the host country's environment.While developing countries with their weak awareness of environmental protection do not usually set a higher threshold in the environmental protection of the investment country in order to attract foreign investment;their laws and regulations on environmental protection need to be improved.In the wave of enormous economic benefits that can be drawn from this stock of investment,international trade and investment have enjoyed rapid development all over the world.However,at the same time,the problem of environmental pollution is getting worse and the environmental protection is no longer a regional issue.The concept of environmental protection of developing countries is also gradually changing.If the issue of conflict between international trade and investment and environmental protection can not be handled properly,it will cause the tension between the investors and the host country.Following the Stockholm Conference and the United Nations Conference on Environment and Development,the issue of trade and investment and environmental protection gradually became legalized.With the new round of trade rules,more and more countries(especially developed countries)signed the IIA,Incorporating environmental provisions into the agreement.The General Agreement on Tariffs and Trade 1994 deals with environment-related provisions in the form of "exceptional clauses." However,since the WTO system is based on a free and competitive market economy with the core objective of pursuing free trade,There will not be too much emphasis on environmental protection.The North American Free Trade Agreement is a more advanced agreement on handling trade and environment disputes and has the title of "green" free trade agreement in the world.It has provisions on environmental protection in the preamble clause,the special clause and the exception clause.Comprehensive Progressive Trans-Pacific Partnership also played a catalytic role in the development of environmental clauses.In the 2004 U.S.Model BIT established a relatively perfect environmental rules,2012 U.S.Model BIT enhanced environmental protection.Among the three new issues in international trade and investment,environmental issues have commonalities with labor standards and competition policy issues,as well as its uniqueness.However,in practice,such as the WTO dispute settlement system DSB,it did not support environmental protection in accepting cases such as the "US Sea Turtle,Shrimp and Shrimp Case." The NAFTA International Settlement Center ICSID accepted many cases in which host country environmental measures were sued and mostly failed to support the host country's environmental measures and even ruled that host countries paid compensation to investors.For example,"Metalclad v.Mexican Government" ICSID ruled that the federal government of Mexico grant Metalclad USD 16,685,000 in damages.As can be seen from these cases,the environmental protection clauses in the treaty are unworthy of the name.Investors are likely to just use environmental agreements in their TIA to maximize the benefits of their investment.In recent years,however,ICSID has treated the environment tradeand investment disputes somewhat differently.Some cases arose in support of the host country such as Adel A Hamadi Al Tamimi v.Sultanate of Oman,but the outlook is not very optimistic.In this paper,through the comparison between traditional trade investment rules and new economic and trade rules,the dispute settlement mechanism compares the treatment results of environmental and trade disputes.The study on the environmental clauses of a new round of trade and investment agreements has important practical significance for our country's bilateral investment negotiations.With the deepening of the concept of environmental protection,all countries are increasingly adopting environmental protection provisions in their IIAs.Under the traditional trade and investment rules and the new trade and investment rules,we compare the results of WTO and ICSID when dealing with cases of trade and investment disputes involving environmental issues.On the one hand,from their processing results,they map out changes in the new generation of trade and investment rules in dealing with environmental issues compared with before,analyze the role of environmental clauses in trade and investment agreements and the role of trade and investment dispute resolution,and predict the future development trend.On the other hand,the impact of the practice of WTO and ICSID on the establishment and development of environmental clauses is analyzed.Changes from the above two aspects,analyze the impact of practice on China's signing of BIT and China's participation in regional trade agreements.In this era of over-protection of investment and investment liberalization,this paper puts forward several suggestions on issues that China should pay attention to when signing international trade and investment agreements and how to face potential disputes.