CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ INTEGRATING CLIMATE CHANGE ELEMENTS INTO INTERNATIONAL INVESTMENT… of old generation agreements in line with recommendations and guides by UNCTAD 21 or OECD, 22 consolidation of the IIAs network, or an academic proposal to adopt a specific treaty to promote investment for climate change measures. 23 Although there have been discussions about sustainable development in the investment policy context the encouragement of green or low-carbon investment through international investment treaties is still little explored. 24 Definition of Investment The definition of investment in international investment agreements delineates the assets and activities that will be subject to protection between the contracting parties. It is critical for determining the type of capital flows the countries wish to attract. At the same time the investment indicates the ratione materiae scope of the investment regime and mostly also arbitral tribunal’s jurisdiction to decide relevant investment disputes. The term investment has its origin in economic terminology and has the potential for a flexible and wide understanding of its meaning. The question of interpretation and application of the term investment used in international investment agreements has been fairly settled or definitions have been better and more fully determined in newly adopted investment treaties. In the past, it has given rise to many academic discussions and divergent approaches in the arbitral practice. 25 From the perspective of an economic meaning of investment, Douglas underlines the notion of a quid pro quo of investment treaty arbitration. 26 The stated objective of investment treaties is to stimulate flows of private capital into the economy of the host State in exchange for which the investor is given a right to bring international arbitration and invoke international standards of treatment against the host State. The economic conceptualization of investment The Notion of Green Investment 21 UNCTAD. International Investment Agreements Reform Accelerator. United Nations. 2020; UNCTAD’s Reform Package for the International Investment Regime. UNCTAD, 2018; and UNCTAD’s Investment Policy Framework for Sustainable Development. UNCTAD, 2015. 22 OECD. FDI Qualities Policy Toolkit. Policies for improving the sustainable development impacts of investment. OECD Consultation Paper, 16 November 2021, [online]. [cit. 1 September 2022]. Accessible at: https://www. oecd.org/investment/investment-policy/FDI-Qualities-Policy-Toolkit-Consultation-Paper-2021.pdf. 23 BRAUCH, M. D. et al. Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation: Aligning International Investment Law with the Urgent Need for Climate Change Action. Journal of International Arbitration. 2019, no. 36(1), pp. 7–35. 24 See e.g., SCHACHERER, S., HOFFMANN, R. T. International investment law and sustainable development. In: KRAJEWSKI, M. and HOFFMANN, R. T. Research Handbook on Foreign Direct Investment . Cheltenham: Edward Elgar Publishing, 2019, pp. 563–595; SACHS, L., LOBEL, N. Aligning International Investment Agreements with the Sustainable Development Goals. Columbia Journal of Transnational Law . 2019, no. 58(1), pp. 58–120; and DUGGAL, K. at al. Consequences of crisis and the great re-think: COVID-19’s impact on energy investment, sustainability and the future of international investment agreements. The Journal of World Energy Law & Business . 2021, no. 14 (3), pp. 10–11. 25 See e.g., STERN, B. The Contours of the Notion of Protected Investment. ICSID Review – Foreign Investment Law Journal , Vol. 24, Issue 2, Fall 2009, pp. 534–551. 26 DOUGLAS, Z. The International Law of Investment Claims . New York: Cambridge University Press, 2009, pp. 161–162.

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