Research On Environmental Protection Clauses In International Investment Agreements

With the development of economic globalization,international investment is also advancing rapidly.International investment has brought economic profits to multinational corporations,and it has also promoted the development of the host country.This is a win-win outcome.But in recent years,we have not only pursued economic benefits,but also advocated environmental protection and sustainable development.Countries are also increasingly concerned about the conflict between investment and environmental protection,and face the negative effects of some international investment activities.For example,in international investment activities,some developed countries will transfer pollution-intensive enterprises to developing countries through international investment.Some developing countries in order to promote the development of their own economies,they reduce environmental standards which cause serious environmental problems.I have consulted relevant information and found that when the international community first faced trade and environmental issues in the 1970 s,the focus of people's attention was mainly on how environmental policies affect free trade,and with the development of trade liberalization,the globalization of environmental problems is also increasingly emerging such as environmental pollution,climate change,and energy crises.The focus of the international community is graduallyshifting to environmental protection.With the development of international investment activities,more people began to explore how to regulate international investment and environmental protection issues.In order to balance the conflict between international investment and environmental protection,early international investment documents were intended to add environmental protection regulations.1976 The Declaration on International Investment and Multinational Enterprises signed by OECD,Article 1 indicate that enterprises should give much consideration to national goals and priorities for economic and social progress,including environmental protection.Investment incentives in the Non-binding Investment Principles signed by APEC in 1994: Member economies will not relax health,safety and environmental regulations to encourage foreign investment.However,since such international investment documents are non-binding,therefore some countries have adopted bilateral and regional investment agreements to promote and protect investment activities while incorporating environmental protection clauses in the agreement to balance the relationship between international investment and environmental protection.China is the largest developing country in the world.In the 40 years of reform and opening up,China has become a world investment country.According to the World Investment Report 2018,China is the second largest FDI destination in the world.Obviously,China has changed from a simple capital-importing country to a country with both capital input and capital output.Under such circumstances,how to coordinate China's international investment and environmental protection is also a trend.Therefore,in this context,the author analyzes the inadequacies of the environmental protection clauses in international investment agreements,and proposes optimization suggestions for the improvement of environmental protection clauses in international investment agreements,in order to benefit the improvement of relevant regulations in China.This is more important in the moment.The Article is consisted of the following four parts:Chapter ? analyzes the necessity of including environmental protection clauses in international investment agreements.The first section starts with the background andthe reasons.First of all,it points out the serious environmental problems that occur in international investment.However,the contradiction is that the current international investment agreements have insufficient attention to environmental protection issues and there are few environmental protection clauses.In this context,the author analyzes the causes of environmental problems in international investment from the perspectives of the home government,investors,and host countries.The second section analyzes the relationship between international investment and environmental protection,and discusses their mutual influence from both positive and negative aspects.The third section analyzes that the inclusion of environmental protection clauses in international investment agreements is the need to adhere to the concept of sustainable development.Chapter ? analyzes the environmental protection clauses in international investment agreements.From the perspective of comparative law,it shows how the environmental protection clauses are defined in representative international investment agreements.The first section analyzes the definition of environmental protection clauses and their manifestations.First of all,I frame the scope of international investment agreements.On this basis,the definitions of environment and environmental protection clauses are defined.Then,the expressions of environmental protection clauses are analyzed.The second section explores the environmental protection provisions of the North American Free Trade Agreement and the latest United States-Mexico-Canada Agreement.By comparing these two investment agreements,the author wants to learn about the progress of the new FTA in the 21 st century.The third section analyzes the general situation of environmental protection clauses in the US,Canada,and China bilateral investment treaties,and clarifies the shortcomings of the environmental protection clauses at present.This chapter provides a textual basis for the further discussion of the application and improvement of environmental protection clauses under chapter IV.Chapter ? introduces theoretical discussion through case analysis.This chapter aims to explore the conflicts between environmental protection clauses and other clauses.The first section selects important arbitration cases related to the environmentin international investment,briefly summarizes the cases.Therefore,the author finds that the relationship between the environmental measures and the expropriation of the host country is the focus of investment disputes related to the environment.The second section researches the conflicts of application of the environmental protection clauses in investment agreements.Which are carried out in terms of indirect expropriation clauses and fair and equitable treatment clauses.The case studies and theoretical studies in this chapter point out the problems in the application of environmental protection clauses,and provide a perspective for the next chapter to improve the application of environmental protection clauses.Chapter ? is aimed at the shortcomings of the environmental protection clauses in the international investment agreement and the problems in the application.The author starts with the improvement of the relevant provisions of the environmental protection clauses,based on the US Model BIT 2012 and the United States-Mexico-Canada Agreement and other relevant agreement rules,and make recommendations for the improvement of environmental protection provisions.Afterwards,regarding the conflicts in the application of environmental protection clauses.The author discusses the application of environmental protection clauses from the perspectives of clearing criteria of indirect expropriation clauses and clarifying the scope of fair and equitable treatment clauses.The last part concludes the article.This paper makes research on the environmental protection clauses and analyzes the shortcomings of current environmental protection provisions in international investment agreements,and puts forward suggestions for improvement.The author hopes that the international community will pay more attention to the development of international investment and environmental protection issues,and handle the relationship between them.International investment and environmental protection are the unity of opposites,not irreconcilable contradictions.Just neglecting the environmental problems brought about by the pursuit of economic development will definitely make us pay a painful price.Therefore,for the benefit of all mankind andfor the sustainable development of the economy,it is of great significance to deal with the relationship between international investment and environmental protection.International investment is a “double-edged sword” for the host country.With large-scale foreign direct investment into the manufacturing,natural resources and infrastructure construction sectors,the host country has gained huge economic benefits while facing environmental pressure.What impact does foreign investment have on the host country's environment? In order to balance the relationship between investment and the environment,how do countries regulate investment behavior in investment agreements? Does the introduction of foreign direct investment bring economic growth to the host country at the expense of the host country's environment?Is international direct investment really seeking a “pollution safe haven” and passing on environmental risks? Has the developing country become a “safe haven” for the transfer of pollution-intensive industries in developed countries? With these various questions,the author makes research on the environmental protection clauses in international investment agreements from the international and domestic levels,entities and procedures,with a view to improving the improvement of relevant regulations in China.