The implementation of sustainable development as a requirement by ICSID tribunals: a proposal for a sustainability standard

Article


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.
TypeArticle
TitleThe implementation of sustainable development as a requirement by ICSID tribunals: a proposal for a sustainability standard
AuthorsMasumy, N. and Hourani, S.
Abstract

There is a growing call to integrate Sustainable Development Goals (‘”SDGs’”) into the general archetype of foreign direct investment (‘”FDI’”). FDI of course has great potential to lead to the creation of new jobs, the eradication of poverty and the potential to raise the income of entire regions. However, it also has a detrimental impact on the environment. The call for the integration of the SDGs has been reinforced with the emergence of the importance of sustainable development at a global level. Examples of initiatives on this matter include the 2030 Agenda for Sustainable Development. Recent UNCTAD reports have also identified a trend where sustainable development and non-commercial considerations were emphasized in the conception of the notion of investment.
Nevertheless, this trend is yet to be reflected in a clearer manner in the current practice of Investor-State Dispute Settlement (‘ISDS’”ISDS”) that falls under the International Centre for Settlement of Investment Disputes (‘(“ICSID’ICSID”) arbitration procedure. There is thus an urgent need for the integration of sustainable development principles into the understanding of investment arbitration under ICSID practice.
In the absence of a clear application of elements of sustainable development in ICSID arbitration, this article explains the ongoing difficulties faced by ICSID tribunals in the application and recognition of ensuing norms, such as sustainable development, within the definition of ‘investment’. The paper also discusses that ICSID tribunals should be better equipped with the necessary tools to effectively and meaningfully engage with norms that are inherently fact and project-specific. The main contribution of the paper lies in a proposal for a sustainability and optimization standard that could be applied as a potential solution for these shortcomings.

Sustainable Development Goals16 Peace, justice and strong institutions
Middlesex University ThemeSustainability
LanguageEnglish
PublisherWolters Kluwer
JournalRomanian Arbitration Journal
ISSN1842-6859
Publication dates
Print31 Mar 2022
Publication process dates
Accepted22 Mar 2022
Deposited22 Mar 2024
Output statusAccepted
Permalink -

https://repository.mdx.ac.uk/item/112zv9

Restricted files

Accepted author manuscript

  • 11
    total views
  • 1
    total downloads
  • 7
    views this month
  • 0
    downloads this month

Export as

Related outputs

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