Střety zájmů při ochraně biodiverzity a klimatu

tensions do not arise. Zhu 34 refers to this tension as a quasi-normative conflict, which occurs as a result of a ‘combination of mandatory climate obligations, permissive implementation methods and normative expectations of ambition’ 35 . The conflict arises at the implementation stage, when a sovereign state’s decision to meet its climate targets through ambitious regulatory measures, such as phasing out fossil fuels, may result in a breach of specific obligations under IIAs to investors. Thus, although the international climate regime and international investment regime may not be formally in conflict, the rigid and enforceable nature of investment law functionally limits the policy flexibility provided by international climate law, creating in practice a hierarchy in which specific investment protection can undermine efforts to achieve collective climate goals. 3. The Energy Charter Treaty as a Forum of Conflicts The practical example of vertical and horizontal conflicts can be seen in the ECT, which provides a broad scope of protection for foreign investors in the energy sector. This is significant as the energy transition to net-zero carbon emissions and the transformation of the global energy system require state intervention in this sector. 36 The importance of the ECT is also underlined by the large number of ISDS cases initiated based on its provisions, making it the most frequently invoked investment agreement in the world. 37 These conflicts are explicitly manifested within the arbitral proceedings. The vertical conflict is apparent when foreign investors challenge domestic climate policies enacted by a sovereign state. For instance, in cases concerning the phase-out of coal, such as RWE v. Netherlands 38 and Uniper v. Netherlands 39 . The companies threatened to initiate arbitration after the Dutch government announced the plan to phase-out all coal-fired power plants by 2030. 40 This action created a vertical conflict, in which the foreign investor opposed their private rights under the ECT against the sovereign power of the state to adopt laws in the public interest. The investors alleged that the Netherlands had violated the provisions of the ECT – specifically the FET standard under Article 10 by frustrating their legitimate expectations of a stable regulatory environment and the indirect expropriation clause under Article 13 by indirectly 34 ZHU, Ying, ref. 15, pp. 183–193. 35 ZHU, Ying, ref. 15, p. 184. 36 MCGLADE, Christophe a Paul EKINS. The geographical distribution of fossil fuels unused when limiting global warming to 2 °C. Online. Nature . 2015, Vol. 517, Issue 7533, pp. 187–190. Available from: https://doi.org/10.1038/nature14016 [accessed 2025-8-30]. 37 For the statistics, ref. 8. 38 RWE v. Netherlands , ref. 26. 39 Uniper v. Netherlands , ref. 26. 40 Wet van 11 December 2019, houdende Regels voor het produceren van elektriciteit met behulp van kolen (Wet verbod op kolen bij elektriciteitsproductie).

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