The invocation of the precautionary principle within the investor-state dispute settlement mechanism: not seizing the occasion

Article


Masumy, N. and Hourani, S. 2024. The invocation of the precautionary principle within the investor-state dispute settlement mechanism: not seizing the occasion. Laws. 13 (2). https://doi.org/10.3390/laws13020022
TypeArticle
TitleThe invocation of the precautionary principle within the investor-state dispute settlement mechanism: not seizing the occasion
AuthorsMasumy, N. and Hourani, S.
Abstract

The principal purpose of this article is to demonstrate how the precautionary principle can be in-cluded in the investor–state dispute settlement (ISDS) deliberative process by providing a legal solution that would permit the invocation and implementation of this concept within the ISDS op-erational framework. The precautionary principle has been widely applied in the environmental management field, yet its role within the ISDS framework has remained relatively underuti-lised. To analyse this issue, this paper first explores the operational justification of the precaution-ary principle and how decision-makers should endorse it in order to fully recognise and address environmental concerns on a legal level. Next, the article proceeds to examine recent ISDS cases in which the precautionary principle was invoked and compares various risk assessment techniques to illustrate how it may be incorporated into the deliberative process and harmonised with other standards. The paper suggests that the forward-looking nature of the precautionary principle has paramount importance in disputes involving oil and gas, particularly in cases where oil and gas ac-tivities are believed to contribute to greenhouse gas emissions that could worsen global warming. This paper advances the argument that a wider application of the principle could better equip ISDS tribunals to address the limitations of scientific knowledge, especially under circumstances where significant or irreversible environmental damage may occur.

KeywordsThe Precautionary principle; Investor-State Dispute Settlement; Investment Arbitration; Oil and Gas disputes; Climate Crisis; Proportionality test; Environmental Harms
Sustainable Development Goals16 Peace, justice and strong institutions
Middlesex University ThemeSustainability
LanguageEnglish
PublisherMDPI
JournalLaws
ISSN
Electronic2075-471X
Publication dates
Online28 Mar 2024
PrintApr 2024
Publication process dates
Submitted05 Sep 2023
Accepted18 Mar 2024
Deposited22 Mar 2024
Output statusPublished
Publisher's version
License
File Access Level
Open
Accepted author manuscript
File Access Level
Restricted
Copyright Statement

Copyright: © 2024 by the authors. Licensee MDPI, Basel, Switzerland.
This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https://creativecommons.org/licenses/by/4.0/).

Digital Object Identifier (DOI)https://doi.org/10.3390/laws13020022
Permalink -

https://repository.mdx.ac.uk/item/112zv7

Download files


Publisher's version
laws-13-00022.pdf
License: CC BY 4.0
File access level: Open

  • 27
    total views
  • 3
    total downloads
  • 9
    views this month
  • 2
    downloads this month

Export as

Related outputs

An introduction to blockchain-based dispute resolution: the emergence of new procedural designs
Hourani, S. 2024. An introduction to blockchain-based dispute resolution: the emergence of new procedural designs. BCDR International Arbitration Review .
Mind the gap? A critical analysis of the recognition and enforcement of cross-border consumer ODR outcomes in the EU
Hourani, S. 2022. Mind the gap? A critical analysis of the recognition and enforcement of cross-border consumer ODR outcomes in the EU. Revista Ítalo-Española de Derecho Procesal. 2022 (1), p. 73–95. https://doi.org/10.37417/rivitsproc/681
The implementation of sustainable development as a requirement by ICSID tribunals: a proposal for a sustainability standard
Masumy, N. and Hourani, S. 2022. The implementation of sustainable development as a requirement by ICSID tribunals: a proposal for a sustainability standard. Romanian Arbitration Journal. 16 (1), pp. 44-69.
The launch of the campaign for greener arbitrations MENA sub-committee: moving towards more sustainable practices in the region
Hourani, S. and Masumy, N. 2021. The launch of the campaign for greener arbitrations MENA sub-committee: moving towards more sustainable practices in the region. The MENA Business Law Review . 2021 (3).
The legal reality of the recognition and enforcement of cross-border blockchain-based arbitral awards: beyond futuristic idealism [Blog post]
Hourani, S. 2019. The legal reality of the recognition and enforcement of cross-border blockchain-based arbitral awards: beyond futuristic idealism [Blog post]. Off the Chain blog.
Keeping up with access to justice in arbitration? A critical analysis
Hourani, S. and Valladares, L. 2020. Keeping up with access to justice in arbitration? A critical analysis. Arbitrate.com.
Access to justice and blockchain-based arbitration: new platforms could be a useful tool for resolving commercial disputes
Hourani, S. 2020. Access to justice and blockchain-based arbitration: new platforms could be a useful tool for resolving commercial disputes. American Bar Association.
The resolution of B2B disputes in blockchain-based arbitration: a solution for improving the parties’ right of access to justice in the digital age?
Hourani, S. 2020. The resolution of B2B disputes in blockchain-based arbitration: a solution for improving the parties’ right of access to justice in the digital age? in: de Oliveira, L. and Hourani, S. (ed.) Access to Justice in Arbitration: Concept, Context and Practice Wolters Kluwer.
Online Dispute Resolution pour les litiges B2B : prêt pour le monde des affaires
Hourani, S. 2017. Online Dispute Resolution pour les litiges B2B : prêt pour le monde des affaires. Newsletter N°14 de la Chambre Arbitrale Internationale de Paris.
Cross-border smart contracts: boosting international digital trade through trust and adequate remedies
Hourani, S. 2017. Cross-border smart contracts: boosting international digital trade through trust and adequate remedies. UNCITRAL Congress on ‘Modernizing International Trade Law to Support Innovation and Sustainable Development. Vienna 04 - 07 Jul 2017 United Nations. pp. 118-119
Towards a fairer trading system for micro and small businesses post-Brexit? Comparative aspects with other common law systems
Hourani, S. 2018. Towards a fairer trading system for micro and small businesses post-Brexit? Comparative aspects with other common law systems. in: Heidemann, M. and Lee, J. (ed.) The Future of the Commercial Contract in Scholarship and Law Reform: European and Comparative Perspectives Springer. pp. 309-339
Frustrated at the interface between court litigation and arbitration? Don’t blame it on Brussels I! Finding reason in the decision of West Tankers, and the recast Brussels I
Farah, Y. and Hourani, S. 2015. Frustrated at the interface between court litigation and arbitration? Don’t blame it on Brussels I! Finding reason in the decision of West Tankers, and the recast Brussels I. in: Stone, P. and Farah, Y. (ed.) Research Handbook on EU Private International Law Edward Elgar Publishing. pp. 116-151
Recasting West Tankers in the deep water: how Gazprom and recast Brussels I reconcile Brussels I with international arbitration
Farah, Y. and Hourani, S. 2018. Recasting West Tankers in the deep water: how Gazprom and recast Brussels I reconcile Brussels I with international arbitration. Journal of Private International Law. 14 (1), pp. 96-129. https://doi.org/10.1080/17441048.2018.1437333