Střety zájmů při ochraně biodiverzity a klimatu

made under the previous, less stringent regulatory framework. Similarly, the indirect expropriation clauses 29 pose a significant challenge to a state’s regulatory autonomy. 30 The expansive interpretation of these fundamental substantive protections by arbitral tribunals thus may transform IIAs from instruments of investment protection into potential instruments for disciplining sovereign regulatory behaviour. The second aspect of vertical conflict is the phenomenon of regulatory chill, which results from the indirect influence that the ISDS has on host states’ ability to exercise their regulatory powers bona fide . 31 The increasing use of ISDS mechanisms to challenge public policy measures raises concerns that states may be reluctant to adopt new policies for fear of costly arbitration proceedings. Given the inherent uncertainty and significant financial risk associated with ISDS, government officials may engage in a form of risk assessment, weighing the public policy benefits of a proposed measure against the potential for costly investment arbitration. In this respect, the phenomenon represents a more subtle but equally profound manifestation of vertical conflict. While substantive protection in IIAs imposes direct legal restrictions on states’ sovereign power, the regulatory chill is an indirect shadow that affects the domestic policy-making process, thereby limiting the state’s ability to regulate ex ante . 32 2.2 The Horizontal Conflict Apart from the vertical tension between international investment law and state sovereignty, a horizontal conflict arises from competing commitments that states undertake at the international level. The question is whether there is a direct conflict between states’ climate commitments and their obligations under IIAs. The author argues that there is not necessarily a direct conflict, 33 although this does not imply that 29 UNCTAD, Expropriation: A sequel – UNCTAD Series on Issues in International Investment Agreements II, UNCTAD/DIAE/IA/2011/7, 2012. Available from: https://digitallibrary.un.org/recor d/743676?v=pdf [accessed 2025-08-15]. 30 It is important to realize, that most expropriations are not conducted directly through formal expropria tion decree, but indirectly as a regulatory conduct which deprives foreign investments of economic value without transferring the interfered properties. The problem with indirect expropriation is determining when the state is indirectly expropriating and therefore required to compensate foreign investors, and when it is a legitimate regulation that is non-compensable. 31 The issue is intensively addressed by Kyla Tienhaara: TIENHAARA, Kyla, ref. 20 and 21. 32 Tienhaara identifies three types of regulatory chills: internalisation chill, threat chill, and cross-border chill. Internalisation chill occurs when legislators consider possible investment disputes with foreign investors before or while regulations or measures are drafted. Threat chill refers to the chilling effect on specific proposed regulatory measures in direct response to an investor‘s threat to initiate arbitration. Cross-border chill occurs when an investor-state dispute in one or more jurisdictions can influence the adoption of regulations in other jurisdictions where the investor is active: TIENHAARA, Kyla, ref. 20. 33 To this briefly in author’s diploma thesis: HLUŠIČKOVÁ, Denisa. The Energy Charter Treaty in Changing Climate: The Phenomenon of Regulatory Chill and Interpretation Challenges . Master’s thesis. Olomouc: Palacký Univeristy in Olomouc, Faculty of Law, 2024, pp. 55-58. Available from: https:// theses.cz/id/i6ncnw/ [accessed 2025-8-30].

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