Střety zájmů při ochraně biodiverzity a klimatu

be found to be a violation of the provisions of IIAs. 46 Which brings us back to the regulatory chill hypothesis. 4. Resolving the Climate-Investment Regime Conflict The conflict between the international investment regime and global climate governance, exemplified by the ECT, has prompted efforts to identify an effective solution. The main task is to reconfigure the existing legal system, which is designed to protect investors’ expectations, so that it reflects the imperative of urgent climate action. The proposed solutions range from minor reinterpretations of existing provisions to complete systemic reform. This chapter provides a systematic overview of these approaches, which may be categorised as interpretative, reformative, and transformative. The first category of solutions posits that the existing legal framework is sufficiently flexible to resolve these conflicts without structural change. This approach places the responsibility on arbitral tribunals to adopt a more coherent and balanced interpretation of investment treaties. The primary legal tool for this is the principle of systemic integration, codified in Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) 47 . This principle obliges interpreters to consider other relevant rules of international law applicable between the parties. This approach encourages arbitral tribunals to interpret IIAs, such as the ECT, not in isolation but in conjunction with other international obligations undertaken by states, including those under the Paris Agreement. However, this interpretation-based approach is uncertain, as it relies on the discretion of individual arbitral tribunals, whose decision-making practices are not consistent. 48 Recognising the limits of interpretation, the second category focuses on reforming the substantive and procedural rules of the IIAs themselves. A notable proposal in the academic literature is the incorporation of a dedicated climate treaty conflict clause into IIAs, designed to address the quasi-normative conflict between the permissive implementation of mandatory climate goals and rigid investment protections. 49 Such a clause could take the form of a subordination clause, which establishes a clear 46 BERNASCONI-OSTERWALDER, Nathalie and Martin D. BRAUCH. Redesigning the Energy Charter Treaty to Advance the Low-Carbon Transition. Online. Transnational Dispute Management . 2019, TDM1, p. 10. Available from: https://www.transnational-dispute-management.com/article.asp?- key=2632 [accessed 2025-8-31]. 47 Vienna Convention on the Law of Treaties, adopted 22 May 1969, 1155 UNTS 331. 48 This inconsistency stems from the ad hoc nature of arbitral tribunals and the absence of a binding system of precedents or an appellate body, which may lead to divergent reasoning in arbitral cases. The issue of an appellate body is examined in depth, for example, in: Nus Centre for International Law Collection of Articles on an Appellate Body in ISDS. ICSID Review - Foreign Investment Law Journal . Online. 2017, vol. 32, Issue 3. ISSN 0258-3690. Available from: https://academic.oup.com/icsidreview/issue/32/3 [accessed 2025-8-30]. 49 ZHU, Ying, ref. 15, pp. 183-193.

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