Střety zájmů při ochraně biodiverzity a klimatu

hierarchy in which climate treaties prevail, 50 or a more politically feasible coordination clause, 51 which mandates consultation among states to reach a mutually satisfactory solution. Beyond a dedicated conflict clause, other proposed reforms include the use of explicit ‘carve-outs’ to exempt climate policies from investor claims 52 and the narrowing of vague substantive protections, such as the FET standard, to prevent them from being invoked to challenge legitimate regulatory changes 53 . However, the main limitation of any reform approach is that it is a lengthy and politically complex process, which depends on a political agreement between the contracting parties regarding the nature of such reform. The last category of proposed solutions reflects the view held by several scholars that the core features of the ISDS mechanism are incompatible with democratic governance due to their impact on domestic policy autonomy. Therefore, the system itself must be replaced or abandoned. The most straightforward strategy is for states to unilaterally withdraw from treaties that constrain their ability to adopt climate policies. 54 However, the legal effectiveness of this approach is substantially undermined by the sunset clauses embedded in most investment treaties. These provisions extend the substantive protection of the treaty to investments made prior to termination, meaning a state remains exposed to potential claims from foreign investors long after its political decision to withdraw from the treaty. 55 To prevent this, the strategy of 50 ZHU, Ying, ref. 15, p. 192. 51 ZHU, Ying, ref. 15, p. 192: Zhu argues that a coordination clause may be more acceptable to the parties if they have different priorities regarding investment and climate, as it provides them with flexibility to re solve conflicts between investment protection and climate agreement commitments on a contextual basis. 52 PAINE, Joshua and Elizabeth SHEARGOLD. A Climate Change Carve-Out for Investment Treaties. Online. Journal of International Economic Law . 2023, Vol. 26, Issue 2, pp. 285–304. Available from: https://doi.org/10.1093/jiel/jgad011 [accessed 2025-8-29]; KORZUN, Vera. The Right to Regulate in Investor-State Arbitration: Slicing and Dicing Regulatory Carve-outs. Online. Vanderbilt Journal of Transnational Law . 2017, Vol. 50, Issue 2, pp. 355–414. Available from: https://scholarship.law.vander bilt.edu/vjtl/vol50/iss2/3 [accessed 2025-8-29]. 53 Ortino explores how tribunals interpret regulatory stability under the FET standard and the tension it creates with states’ right to regulate, see ORTINO, Federico. The Obligation of Regulatory Stability in the Fair and Equitable Treatment Standard: How Far Have We Come?. Online. Journal of International Economic Law . 2018, Vol. 21, Issue 4, pp. 845–865. Available from: https://doi.org/10.1093/jiel/jgy039 [accessed 2025-8-29]. 54 The European Commission published a press release on 28 th of June 2024, notifying the withdrawal of the European Union from the ECT. As the reason, it was stated that the ECT is incompatible with its climate goals under the European Green Deal and the Paris Agreement, see https://ec.europa.eu/com mission/presscorner/detail/en/ip_24_3513. 55 The ECT contains a sunset period of 20 years in the case on unilateral denunciations pursuant to Article 47(3) of the ECT. Some authors therefore favour modernization, which in the case of the ECT would limit protection of investments in the fossil fuel industry to 10 years, compared to 20 years in the case of withdrawal from the ECT, see TROPPER, J. Withdrawing from the Energy Charter Treaty: The End Is (not) Near. Kluwer Arbitration Blog . Online. 4 November 2022. Available from: https://legalblogs. wolterskluwer.com/arbitration-blog/withdrawing-from-the-energy-charter-treaty-the-end-is-not-near/ [accessed 2025-8-29].

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