Střety zájmů při ochraně biodiverzity a klimatu

expropriating their investments without compensation. 41 Uniper eventually refrained after a stabilisation agreement was concluded with the German Federal Government, leading to a subsequent takeover by the German state. 42 RWE also discontinued its proceedings against the Netherlands, following an appeal ruling from the German Federal Court of Justice that found the arbitration to be inadmissible under both German and EU law. 43 The vertical conflict is thus embodied by the very structure of these claims, which subject a domestic legislative act to the scrutiny of an arbitral tribunal. Although both cases were ultimately discontinued, their initiation serves as a potent illustration of this conflict. They demonstrate a system in which private investors can seek substantial compensation for the adverse economic effects of bona fide public policies. This potential for liability creates the phenomenon of regulatory chill, a dynamic in which the threat of costly arbitration may deter states from enacting ambitious climate legislation. In conclusion, the essence of vertical conflict lies in the systemic pressure the ECT exerts upon a state’s regulatory autonomy. Simultaneously, these proceedings expose the deep horizontal conflict. The state, in its defence, argues that its actions are not merely discretionary but are necessary to fulfil its international obligation under international climate frameworks such as the Paris Agreement. This puts the state’s obligation under the ECT to protect investors into conflict with its commitment to mitigate climate change. 44 ECT arbitration thus becomes a forum in which a claim brought by a foreign investor forces the resolution of a horizontal conflict between treaties, potentially leading to the functional subordination of global climate goals to the enforceable rights of individual investors. 45 While such normative conflicts could be reconciled through the principle of systemic integration, the ECT or IIAs in general offer no guidance on how to reconcile these competing obligations; this interpretative ambiguity leaves states in fear that climate actions could 41 RWE v. Netherlands , ref. 26, Claimants’ Memorial, 18 December 2021. 42 UNIPER SE. Agreement on Amended Stabilization Package: Federal Government Acquires 99 % stake in Uniper. [Press release]. Uniper.energy. Online. 21 September 2022. Available from: https://www.uni per.energy/news/agreement-on-amended-stabilization-package-federal-government-acquires-99-stake- -in-uniper [accessed 2025-8-31]. 43 Beschluss in dem Verfahren auf Feststellung der Unzulässigkeit des Schiedsverfahrens, Bundesgerichtshof [Federal Court of Justice], I ZB 75/22, 27 July 2023, para. 102-115. The court relied on the ruling in Achmea B.V. Slovak Republic (formerly Eureko B.V. v. Slovak Republic), UNCITRAL, PCA Case No. 2008-13, Award, 7 December 2012 and Komstroy (formerly Energoalians) v. Republic of Moldova, UNCITRAL, Arbitral Award, 23 October 2013. 44 Another case is Rockhopper Italia S.p.A., Rockhopper Mediterranean Ltd, and Rockhopper Exploration Plc v. Italian Republic , ICSID Case No. ARB/17/14, Final Award, 23 August 2022, in which Italy’s clima te-driven ban on oil drilling was challenged under the ECT, further highlighting how climate policy measures may trigger liability under investor protections. 45 Ranganathan explains how treaty conflict may subordinate climate treaties to other treaties and their obligations, see RANGANATHAN, Surabhi. Strategically Created Treaty Conflicts and the Politics of International Law . Cambridge: Cambridge University Press, 2014, p 54. ISBN 978-1-107-04330-5.

44