Střety zájmů při ochraně biodiverzity a klimatu

addresses the issue of states’ right to regulate, and the phenomenon known as regulatory chill , a widely debated issue in academic literature. 19 Then the focus shifts to explaining the horizontal conflict, emphasising the relationship between the two legal regimes. 2.1 The Vertical Conflict Vertical conflict refers to the tension between the supranational legal regime created by IIAs and the sovereign regulatory authority of the state. In this paper, vertical conflict is understood in relation to the adoption of climate policies; however, it is also generally associated with the adoption of other measures for legitimate public welfare objectives. 20 This conflict manifests itself in two main aspects that are closely linked. The first is the legal constraint that the substantive protections in IIAs impose upon the state’s right to regulate through investor protection enshrined in IIAs. The second is the phenomenon of regulatory chill , which describes a hypothesised deterrent effect where the threat of ISDS may discourage governments from implementing or enforcing ambitious climate legislation. 21 Examining the interference with states’ right to regulate in the public interest and the chilling effect on policymaking reveals how the international investment regime affects the sovereign policy space of states in addressing climate change. 22 The main legal challenge to states’ regulatory autonomy stems from substantive protections enshrined in IIAs, which are enforced through ISDS mechanisms. This can be better understood as having a dual nature, consisting of the interaction of two fundamental aspects of the investment regime. The first is the substantive dimension, concerning the interpretation and structure of substantive provisions within IIAs. The second is their subsequent application by arbitral tribunals in specific disputes – the procedural dimension. Although the ISDS mechanism has long been criticised for its deficiencies in terms of transparency, consistency, and legitimacy, 23 it is the rapidly 19 SCHRAM, Ashley et al. Internalisation of International Investment Agreements in Public Policymaking: Developing a Conceptual Framework of Regulatory Chill. Online. Global Policy . 2018, Vol. 9, Issue. 2, pp. 193–202. Available from: https://doi.org/10.1111/1758-5899.12545 [accessed 2025-8-31]. 20 For example, HAJDU, G. Investment Arbitration and the Public Interest. Online. Hungarian Yearbook of International Law and European Law . 2020, Vol. 8, Issue 1, pp. 75–91. Available from: https://doi. org/10.5553/HYIEL/266627012020008001005 [accessed 2025-8-15]. 21 TIENHAARA, Kyla. Regulatory Chill in a Warming World: The Threat to Climate Policy Posed by Investor-State Dispute Settlement. Online. Transnational Environmental Law , 2018, Vol. 7, Issue 2, pp. 229–250. Available from: https://doi.org/10.1017/S2047102517000309 [accessed 2025-8-15]. 22 There is extensive academic literature on this subject, e.g.: TIENHAARA, Kyla. Regulatory Chill and the Threat of Arbitration: A View from Political Science. In: BROWN, Chester a Kate MILES (eds). Evolution in Investment Treaty Law and Arbitration . Cambridge: Cambridge University Press, 2012, pp. 606–628. ISBN 978-1-107-01468-8; VAN HARTEN, Gus and Dyana N. SCOTT. Investment Treaties and the Internal Vetting of Regulatory Proposals: A Case Study from Canada. Journal of International Dispute Settlement . Online. 2016, Vol. 7, Issue 1, pp. 92–116. Available from: https://doi.org/10.1093/ jnlids/idv031 [accessed 2025-8-25]; TIENHAARA, Kyla, ref. 20, pp. 229–250. 23 See, e.g.: KINGSBURY, B. and Stephan W. SCHILL. Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law. IILJ Working

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