Střety zájmů při ochraně biodiverzity a klimatu

growing area of regulatory disputes that is putting pressure on a long-awaited reform of the ISDS regime. These cases serve as a prime example for critics, as they allow foreign investors to challenge legitimate state measures before private arbitral tribunals. The interpretation of the vague language in IIAs by tribunals is precisely where the fundamental impact of these agreements on regulatory autonomy is most evident. This is particularly apparent with respect to the standard of fair and equitable treatment (FET), 24 which is probably the most frequently and broadly interpreted substantive protection. 25 Often left undefined in the treaties themselves, the FET standard has been interpreted by tribunals to protect the legitimate expectations of foreign investors. 26 In the context of climate policy, this doctrine can be used to challenge necessary regulatory changes, such as phasing out fossil fuel extraction licenses 27 or introducing strict emission standards, 28 which inherently disrupt the economic equilibrium of investments Paper . 2009, Public Law Research Paper No. 09-46. ISSN 1552-6275; SCHILL, Stephan W. Reforming Investor–State Dispute Settlement: A (Comparative and International) Constitutional Law Framework. Online. Journal of International Economic Law . 2017, Vol. 20, Issue 3, pp. 649–672. Available from: htt ps://doi.org/10.1093/jiel/jgx023 [accessed 2025-8-31]. Also in arbitral decision are as a main concerns listed lack of sufficient legitimacy, transparency and consistency, see UNCTAD. Reform of Investor State Dispute Settlement: In Search of a Roadmap, June 2013, Issue 2. Available from: https://unctad. org/system/files/official-document/webdiaepcb2013d4_en.pdf [accessed 2025-8-31]. 24 The range of interpretations demonstrates, e.g. Electrabel S.A. v. The Republic of Hungary , ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, para. 7.77 , where the tribunal stated that ‘the host State is entitled to maintain a reasonable degree of regulatory flexi bility to respond to changing circumstances in the public interest’ or Philip Morris Brands Sàrl v. Oriental Republic of Uruguay , ICSID Case No. ARB/10/07, Award, 8 July 2016, where the tribunal rejected FET and expropriation claims against Uruguay’s public health measure, affirming that non-discriminatory and proportionate regulation enacted bona fide falls within a state’s regulatory power. Conversely, e.g. Saluka tribunal stated that FET standard requires the host state to ‘grant the investor freedom from coer cion or harassment by its own regulatory authorities’, see Saluka Investment B.V. v. The Czech Republic , UNCITRAL, Partial Award, 17 March 2006, para 308. 25 For statistics on alleged and found breaches of IIA provisions, see UNCTAD Investment Policy Hub. Investment Dispute Settlement Navigator . Online. 31 August 2025. Available from: https://investment policy.unctad.org/investment-dispute-settlement [accessed 2025-8-31]. 26 As discussed in more detail, e.g. by Michele Potestà: ‘(…) one hardly find any example where the con cept of legitimate expectation has not been invoked by the claimant an, at least to a certain extent, endor sed by the arbitral tribunal (…) yet, despite the fortune that legitimate expectations seem to have been enjoying lately, there has been very little attempt by arbitral tribunals to provide a systemic and rigorous framework for the consideration of such expectations in investment treaty arbitration’ in POTESTÀ, Michele. Legitimate Expectations in Investment Treaty Law: Understanding the Roots and the Limits of a Controversial Concept. Online. ICSID Review - Foreign Investment Law Journal . 2013, Vol. 28, Issue 1, pp. 88–122. Available from: https://doi.org/10.1093/icsidreview/sis034 [accessed 2025-8-31]. 27 For example in: Uniper SE, Uniper Benelux Holding B.V. and Uniper Benelux N.V. v. Kingdom of the Netherlands , ICSID Case No. ARB/21/22 ( Uniper v. Netherlands ) and RWE AG and RWE Eemshaven Holding II BV v. Kingdom of the Netherlands , ICSID Case No. ARB/21/4 ( RWE v. Netherlands ). 28 For example in: Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG & Co. KG v. The Federal Republic of Germany , ICSID Case No. ARB/09/6, Request for Arbitration, 30 March 2009.

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