Investor-state dispute settlement: obstructing a just energy transition
Taylor & Francis Online | 5 December 2022
Investor-state dispute settlement: obstructing a just energy transition
by Kyla Tienhaara, Rachel Thrasher, B. Alexander Simmons & Kevin P. Gallagher
Governments that revoke licenses and permits or take other measures to restrict the development of oil and gas in their territory will face claims from investors for compensation. When investors are foreign, they can seek compensation for ‘lost future profits’ in investor-state dispute settlement (ISDS), even if they had not commenced production. ISDS cases are likely to obstruct a just transition by chilling supply-side climate measures and diverting public funds away from climate change mitigation and adaptation efforts. Using a dataset of ISDS-protected assets in the upstream oil and gas sector, we demonstrate that the global distribution of legal and financial risks is highly unjust. More than two thirds of the net-present value of 1.5°C-incompatible and treaty-protected oil and gas assets are found in low- and middle-income countries, including those highly vulnerable to climate change. The Energy Charter Treaty (ECT) is the most significant single treaty obstructing the transition. While protection of fossil fuels in some countries may soon be phased-out of this treaty, the protection of the assets identified in our study will remain for at least ten more years. To limit ISDS risk, states should: (1) immediately cease the issuance of new permits/leases for oil and gas developments; (2) terminate investment treaties (including the ECT) and (3) develop binding rules that cap the amount of compensation that can be awarded to investors.
Key policy insights
- Oil and gas investors protected by investment treaties can claim compensation for ‘lost future profits’ in investor-state dispute settlement (ISDS) when governments impose limits on production (supply-side climate policy).
- ISDS claims could absorb a significant amount of public finance that is needed for climate mitigation and adaptation, particularly in the Global South.
- The Energy Charter Treaty (ECT) protects more upstream oil and gas assets than any other single treaty and is already being used to challenge climate action; recent efforts to modernize the treaty are insufficient.
- To limit the risk of ISDS claims, states should stop issuing permits for new oil and gas projects, terminate investment treaties and develop rules to cap the amount of compensation that can be awarded to investors.
In late August 2022, UK-based oil and gas firm Rockhopper Exploration announced that it had prevailed in its long running dispute with the Italian government. Italy had banned offshore oil and gas drilling within 12 nautical miles of the coast in 2015. As a result of this ban, Rockhopper was unable to obtain permits to exploit the Ombrina Mare field, which is only six nautical miles from the Eastern coast of the country in the Abruzzo region. The company argued that it deserved to be compensated, not just for the money it had invested in exploration, but also for ‘lost future profits’, and brought a claim to an investor-state dispute settlement (ISDS) panel under the Energy Charter Treaty (ECT). After close to five years of closed-door hearings and deliberations, the panel sided with Rockhopper and awarded the company more than €190 million. The company’s share price nearly doubled on the news of the award and the CEO announced that the winnings would be invested in another oil and gas project in the Falkland Islands (Rockhopper, 2022).
The Rockhopper case illustrates how the international investment regime, and notably the ECT, makes state interventions to curb oil and gas production difficult and costly. It has been clear for some time that further development of oil and gas fields is incompatible with limiting global warming to 1.5°C, which is the ambition of parties to the Paris Agreement (Green & Denniss, 2018; Lazarus & van Asselt, 2018; Muttitt, 2016; Piggot et al., 2020). In 2021, the International Energy Agency (IEA) modelled an energy pathway consistent with this objective. Under the Net-Zero Emissions by 2050 (NZE) scenario, ‘no new oil and gas fields’ would be approved for development (IEA, 2021). This is an acknowledgement by the IEA that a considerable amount of known fossil fuel reserves must remain in the ground if we are to avoid catastrophic climate change.
Although it was seen as a breakthrough for the IEA to develop this pathway, some argue that the NZE is premised on optimistic assumptions about the role that carbon capture and storage technology can play in the energy transition (Greenpeace et al., 2022). In another 1.5°C scenario, Welsby et al. (2021) estimate that by 2050 nearly 60% of oil and fossil methane gas must remain unextracted, which suggests that even some existing operations are not viable and more aggressive action than the NZE is required. Trout et al. (2022) demonstrate that there is more carbon in existing oil and gas developments than can be burned in a 1.5°C carbon budget and argue that governments and companies might not only have ‘to cease licensing and development of new fields and mines’, but also ‘prematurely decommission a significant portion of those already developed’. Others argue that 2050 is too late to reach net-zero emissions (CCAG, 2021) and several cities, as well as a small number of countries, have already committed to net-zero emissions by 2040, or earlier (Darby & Gerretsen, 2019). At a global level, net-zero emissions by 2040 would undoubtedly require both the immediate halt of new fossil fuel projects as well as the cancellation of those under development, or the early retirement of some that are currently operating.
As the annual Production Gap reports demonstrate, current government plans for fossil fuel production do not align with the NZE and certainly not with a more ambitious phase-out of fossil fuels (SEI et al., 2021). However, the tide may be (slowly) turning. At the 26th Conference of the Parties (COP) to the United Nations Convention on Climate Change (UNFCCC) in Glasgow, eleven national and subnational governments launched the Beyond Oil and Gas Alliance (BOGA) – an international coalition led by Denmark and Costa Rica working to facilitate the managed phase-out of oil and gas production (BOGA, 2021). The election in May 2022 of Gustavo Petro in Colombia is also noteworthy; he has committed to stop the government from issuing new oil and gas exploration permits on his first day in office, and to then deal with those permits that have already been approved (Nugent, 2022).
There are numerous factors that are limiting the number of countries that are willing to take similar measures. The power of the fossil fuel industry (both structural and discursive) to influence decision-makers and shape public opinion about appropriate responses to climate change is significant (Newell & Paterson, 1998; Wright et al., 2021). Piggot et al. (2020) also describe the problem of ‘carbon entanglement’, where ‘dependence on fossil fuels generates a vested interest in bringing fossil fuels to market’. What is less well recognized is that states also have a ‘legal entanglement’ problem, having signed more than two thousand bilateral investment treaties (BITs) and several hundred plurilateral treaties that commit them to protecting investments in the fossil fuel sector (Asselt, 2021; Brauch, forthcoming; Lobel & Fermeglia, 2018).
Most of these treaties provide investors access to ISDS. To date, there have been at least 231 ISDS cases related to fossil fuel investments, which is almost 20% of the total known number of cases across all sectors (Di Salvatore, 2021). Only a small number of cases involving fossil fuel investments have been initiated directly in response to climate policies (see Tienhaara et al., 2022a, Table S1), with the largest claim (US$15 billion) to date brought by TC Energy against the US over the cancellation of the Keystone XL pipeline. However, this number is anticipated to rise as governments begin to take more concerted action to tackle climate change. A prominent lawyer has even suggested that many investors (and their counsel) see ISDS as a means by which they can profit from government action on climate (Kahale, 2022).
Building on our prior work (Tienhaara et al., 2022a), we map out the legal and financial risks that governments will face if they adopt a more ambitious version of the NZE (our approximation of what a net-zero by 2040 transition might look like) based on investment treaty coverage of oil and gas projects that would need to be cancelled. Our findings indicate substantial risk for some countries, particularly low- and middle-income countries. We argue that in these countries, government policies necessary for the energy transition will be delayed, weaker than otherwise, and/or more costly to taxpayers due to ISDS cases and the threat of investor claims. We further contend that ISDS will divert crucial public resources away from efforts to ensure that the transition is just; in other words, that ‘no people, workers, places, sectors, countries or regions are left behind in the move from a high carbon to a low-carbon economy’ (Intergovernmental Panel on Climate Change, 2022, p. 36). Essential public finance needed for mitigation and adaptation efforts, as well as for programmes to assist workers and communities currently dependent on fossil fuel production, will be diverted to private firms and shareholders. Finance will also flow from South to North – the opposite direction as promised under international climate finance commitments. We conclude that to limit their exposure to ISDS risk, governments should: (1) immediately cease the issuance of new permits/leases for oil and gas developments; (2) terminate investment treaties and (3) develop binding rules that cap the amount of compensation that can be awarded to investors.
International investment treaties provide protection to investors from one state (the ‘home state’) and their investments in a second state (the ‘host state’).1 They effectively function as a form of free political risk insurance (Gaukrodger, 2022; Sachs et al., 2020). Since most investment treaties involve developing-developed-country pairs, and since investment flows primarily from high-income to low- and middle-income countries, in practice, the treaties place greater constraints on developing country parties. In addition to the inequitable distribution of risk in the system, there are no proven public benefits for participation in it. Developing countries signed these treaties under the expectation that they would help them to attract foreign investment, which itself promises to speed up economic development. Unfortunately, numerous studies attempting to demonstrate that treaties do in fact lead to increased investment have only provided weak and inconsistent evidence (Bonnitcha, 2017; Brada et al., 2021; Pohl, 2018).
Investment treaties also have another dimension of asymmetry: they provide investors with protection but do not impose obligations on them, for example, in terms of respecting human rights or protecting the environment. This structure is no accident. As Perrone (2021) has shown, investors in the natural resources sectors, including major oil and gas firms like Royal Dutch Shell, Total, and Standard Oil of New Jersey (now ExxonMobil), played an important role in the early days of the development of international investment law as ‘norm entrepreneurs’.
The language of investment treaties and practice of international tribunals has fossilized the idea that the main impediment to foreign investment is state overreach or ‘political risk’ (Perrone, 2021). The specific provisions of greatest relevance to the kind of cases we are concerned with in this article are those on national treatment (NT), most-favored nation (MFN), fair and equitable treatment (FET) and (indirect) expropriation. Sunset clauses (also called ‘survival clauses’), which provide continued protection of investments in place at the time a treaty is terminated for a set period, are also important to be aware of. Not all treaties are identical, of course, but most carry similar commitments in these areas; 85% include the NT standard, 98% require MFN treatment, 95% include FET, 97% cover indirect expropriation and 96% have a sunset clause (57% extend treaty commitments for 10 years after termination, 20% for 15 years and 15% for 20 years). In contrast, less than 5% of treaties invoke an explicit ‘right to regulate’ for the host state (UNCTAD, 2021a).
NT and MFN are ostensibly designed to keep policy makers from crafting laws that would discriminate against foreign firms or firms from specific countries. However, these standards have been interpreted broadly to cover de facto discrimination, meaning that no intent to discriminate is required. Furthermore, these standards are often phrased as prohibiting discrimination between firms in ‘like circumstances’, which has been construed by some tribunals as allowing a comparison of treatment across sectors and diverse situations (see Bilcon of Delaware v. Canada, 2015, for example). As such, differential treatment based on the carbon intensity of investments could be considered a breach of these standards (Wilensky, 2014).
Investment treaties also constrain non-discriminatory policymaking to the extent that it ‘substantially’ deprives foreign investors of the value of their investment or undermines their ‘legitimate expectations’ of future revenue and profit (Bonnitcha, 2011; Nikièma, 2012; Sornarajah, 2017). Provisions on indirect expropriation, which occurs when a government interferes with (but does not take ownership of) an investment, could be invoked in cases involving the cancellation of fossil fuel licenses and permits. However, the most widely utilized and most concerning provision in ISDS is the FET standard, which is sometimes embedded within a broader provision on the minimum standard of treatment. While historically the minimum standard was understood to be a shield against the most egregious forms of state conduct, interpretations of FET have expanded in recent years to cover a much broader range of state action that counter firms’ ‘legitimate expectations’ (Johnson, 2018). Interpretations of the standard depend heavily on whether the tribunal believes that the investor could reasonably have expected that regulations, taxes and other measures would stay the same for the duration of an investment – an inquiry that is highly subjective.
States can argue that fossil fuel investors could not have had ‘legitimate expectations’ that their investments would not be impacted by climate policies, considering international agreements on climate date back to 1992. However, Philippe Sands (a prominent legal scholar and investment arbitrator) has noted that arbitrators are generally very resistant to considering any international law obligations found outside of investment law.2 Furthermore, investors will point to any inconsistencies in state behaviour (such as cancelling one pipeline but allowing others to proceed) as evidence that decisions have been taken for ‘political’ reasons, rather than to meet international climate commitments (see, e.g. the arguments in TC Energy Corp. and TransCanada PipeLines Ltd., 2021).
There are also other arguments that could be raised in defence of the stranding of fossil fuel assets. For example, it is now well documented that oil and gas firms have long been engaged in strategic efforts to misinform the public and obstruct government action on climate change (Franta, 2021; Oreskes & Conway, 2011; Supran & Oreskes, 2021). Thus, any expectation that investors had that business-as-usual in the industry would be able to continue indefinitely is based on their own obstructionism and should not be considered legitimate. Whether states will raise such issues when defending their policy choices remains to be seen.
Unlike many areas of international law, investment protection is highly enforceable. ISDS is an ad-hoc legal process where a tribunal of three is chosen and paid for by the disputing parties. Investors do not have to attempt to resolve the dispute in a local court before launching an ISDS case. If states do not or cannot pay awards, claimants can legally seize government assets in other countries (Bonnitcha et al., 2017).
ISDS has come under fierce criticism in the last two decades for being secretive (proceedings are typically closed and documents/awards are not always published), exclusive (tribunals have discretion to accept/consider third-party submissions, but frequently do not), subject to conflicts of interest (individuals can act as counsel in one case and arbitrator in another), inconsistent (there is no formal system of precedent and no process for appeals), expensive (arbitration and legal costs are US$4.7 million for states on average) and slow (cases take 3.76 years on average) (Hodgson et al., 2021; Van Harten et al., 2015; Zárate et al., 2020). ISDS outcomes are also imbalanced, both structurally, because only investors can bring claims, and practically, because investors from high-income states are more likely to prevail (Samples, 2019; Van Harten, 2016; Wellhausen, 2016).
The broad scope for interpretation of treaties and lack of precedent in ISDS makes it difficult to predict the outcome of cases. Some commentators point to the decision in Philip Morris v Uruguay (2016), where the tribunal found that ‘the expectation’ of cigarette producers ‘could only have been of progressively more stringent regulation’ (Award, para. 430), as an indication that states are likely to prevail in climate cases. However, climate mitigation is much more complex than tobacco regulation because there are so many different options available for reducing greenhouse gas (GHG) emissions and government decisions about what sectors of the economy to tackle first are inherently political. Furthermore, the claims against Australia and Uruguay concerned labelling requirements, not an outright ban on the sale of cigarettes. It is also worth noting that these cases dragged on for several years, and in that period other countries adopted a ‘wait and see’ approach before implementing similar legislation (Tienhaara, 2018). That fact that the uncertainty around ISDS outcomes can lead to governments delaying, modifying or abandoning policy measures (regulatory chill) is particularly concerning in the context of climate change, where there is a very limited window of opportunity to keep warming below 1.5°C or even 2°C. Unfortunately, there is some preliminary evidence of regulatory chill in the climate policy sphere. In 2017, the Canadian oil firm Vermillion threatened the French government with an ISDS case over a law aimed at ending hydrocarbon extraction in the country (Sachs et al., 2020). The law was subsequently weakened (Vaudano, 2018). Additionally, New Zealand’s climate minister recently admitted that the country had not taken more aggressive action to phase-out fossil fuel production, in part, due to concerns about potential ISDS claims (Meager, 2022).
The main reason why ISDS cases (and threats to bring claims) can potentially induce a chilling effect, particularly in low-income countries, is because substantial sums of money are involved. Investment treaties do not provide much guidance to tribunals on how to calculate an appropriate amount of compensation for a successful claimant. The general trend in practice has been that arbitrators have moved away from limiting compensation to the ‘sunk costs’ of a project and have instead embraced approaches that base compensation on what the income of a project might have been if it had proceeded as planned (sometimes referred to as ‘lost future profits’) (Bonnitcha & Brewin, 2020; Fisher et al., 2017). As a result, there has been an increasing number of very large awards, particularly in cases concerning fossil fuel investments where the average amount awarded to investors is more than US$600 million (Di Salvatore, 2021).
There is potential for ISDS awards to be ‘crippling’ for some states (Paparinskis, 2021). For example, in 2019, only days after receiving a US$6 billion loan from the International Monetary Fund (IMF) to deal with an economic crisis, Pakistan was ordered by an arbitral tribunal to pay investors US$5.8 billion in damages over a proposed mine (Bonnitcha & Brewin, 2020; Paparinskis, 2021). This was more than twenty-five times the sunk costs of the investors (US$220 million) (Shazad, 2020).
Given the potential for large awards and the option to have legal fees covered by third-party funders (see Dafe & Williams, 2021), some investors may opt to initiate arbitration even if governments offer compensation as part of their policy. For example, both RWE and Uniper rejected the maximum compensation (€512 million and €351 million, respectively) provided by the Dutch government under its coal power phase-out plan and launched €1 billion + ISDS claims under the ECT (Verbeek, 2021). The knowledge that ISDS claims are possible can also distort the power dynamics in negotiations between investors and states on compensation (Tienhaara & Cotula, 2020). For example, the German coal power phase-out involved a compensation package negotiated in the shadow of the ECT that has been widely criticized as being overly generous (Flues, 2022).
In addition to these concerns about over-compensation and power imbalances, there is a broader question about whether fossil fuel investors should be compensated at all for the losses that they incur in the energy transition. As Muttitt and Kartha (2020) note, it is ‘ironic’ that fossil fuel investments are legally protected from the energy transition given that the large private profits that fossil fuel companies have generated are ‘generally rationalized as a reward for risk-taking’. Even the editorial board of the Financial Times (2022) has taken the position on this issue that ‘if profits are to be private, so too should losses’ because this is both the ‘heart of the capitalist social contract’ and ‘fundamental to the ability of markets to deal adequately with the challenge of climate change’. Indeed, insulating investors from the risk associated with further investments in fossil fuel production creates moral hazard (Bonnitcha, 2011).
Net-zero by 2040: what are the legal and financial risks that countries face?
Globally, most oil and gas reserves are on public lands or in offshore deposits within the territorial control of a state. Governments provide access to these reserves through leases, permits, or production sharing agreements (Rafaty et al., 2020). After an initial period of exploration, if a commercial discovery is made, a company will obtain financing and all necessary permits before making a final investment decision (FID) and proceeding to drill wells and commence production, which may then last several decades. The IEA’s NZE involves no development of oil and gas fields where a FID had not been made as of the close of 2021. The intention was to minimize the stranding of upstream production assets by avoiding the early closure of fields where significant capital has already been invested (Greenpeace et al., 2022). The NZE also, therefore, minimizes the potential for investor claims for compensation. Nevertheless, if firms have been awarded permits, even if they were only for exploration, they have an ‘investment’ under the definition of most investment treaties. Investors will argue that when a government issues an exploration permit, it creates a ‘legitimate expectation’ that drilling will be permitted if an economically viable deposit is found.
In a recent study, we estimated that as of 6 January 2022, 19% of the world’s oil and gas assets without a FID were protected by investment treaties (Tienhaara et al., 2022a). Cancellation of further development, in line with the NZE, could amount to US$57-234 billion in ISDS awards, depending on future oil prices. A more rapid transition, for example net-zero by 2040, would require additional action such as the cancellation of oil/gas projects from the last decade (2012–2021) that are not yet producing (i.e. ‘under development’). We found such action could increase the ISDS price tag by US$32-106 billion to a total of US$89-340 billion.3
Here, we use data from Tienhaara et al. (2022a) to examine the implications of this ISDS risk for a just transition. One could argue that an approach that limits developments based on their stage in the development cycle is unjust because it does not consider countries’ past opportunities to exploit resources, their stage of economic development, or their contribution to the current concentration of GHGs in the atmosphere. In particular, ‘latecomers’ to fossil fuel exploitation, like Mozambique, would lose out on the opportunity to exploit their resources (Bos & Gupta, 2019). However, we would agree with Muttitt and Kartha (2020) that such an approach can be just if accompanied by international financial assistance (see further Green & Gambhir, 2020). Unfortunately, investment treaties may cancel out any efforts to provide low- and middle-income countries with finance to transition away from oil and gas production as well as to adapt to the impacts of climate change. We compare the share of financial risks from oil/gas project cancellations between low-, middle- and high-income economies and identify where ISDS claims will disproportionately threaten the capacity of countries to achieve climate mitigation and adaptation goals, including the renewable energy costs associated with their nationally determined contributions (NDCs) to the Paris Agreement.
Our methodology for developing the dataset of treaty-protected assets is detailed in Tienhaara et al. (2022a). To estimate a range of potential ISDS awards for ‘lost future profits’ associated with these treaty-protected oil/gas projects, we use four estimates of net present value (NPV). The first NPV is based on Rystad Energy’s (2022) default prediction, which is temporally dynamic and calculated based on forecasts of oil prices in the short and medium term, and cost of supply curves for the longer-term. The other three NPV estimates assume a constant Brent oil price of US$50/bbl, US$75/bbl and US$100/bbl. All results are calculated individually according to each NPV estimate. However, for simplicity and comparability in reporting, we focus most of our results on the mean NPV across all four estimates. See the Supplementary Materials for results of each NPV estimate.
To identify countries where ISDS risks may jeopardize the capacity for climate-vulnerable countries to invest in necessary adaptation measures, we compared their ISDS financial stress with a national index of climate vulnerability. For ISDS financial stress, we summed the average NPV of all treaty-protected oil/gas assets (those without a FID and those under development) for each country and calculated the proportion of the country’s gross domestic product (GDP) this ISDS price tag represents. We used GDP (in USD) reported prior to the COVID-19 pandemic (2019 for most countries), obtained from the World Bank (2022). Data on countries’ vulnerability to the impacts of climate change was obtained from the Notre Dame Global Adaptation Initiative (2021), which includes a Climate Vulnerability Index for 2019 that measures each country’s exposure, sensitivity and adaptive capacity to a variety of climate hazards on a scale from 0 (least vulnerable) to 1 (most vulnerable).
Additionally, we identify countries where ISDS risk may jeopardize the capacity for countries with high carbon footprints to achieve their renewable energy goals. We obtained data on countries’ total annual CO2 emissions from the World Bank (2022). For each country, we use the average emissions rate during the last 10 years where data is available (2008–2018). To estimate investment needed for renewable energy, we use data from Cabré et al. (2018), which estimates the costs (in USD) of 112 countries’ nationally determined contributions (NDCs) to renewable energy under the Paris Climate Agreement, including solar PV, wind power, hydropower, geothermal energy, electricity from bioenergy, and concentrating solar power. For the 43 countries with treaty-protected oil/gas projects whose NDC costs are quantified by Cabré et al. (2018), we calculate the proportion of the total NDC costs represented by the mean NPV of all their treaty-protected projects. The remaining 54 countries without estimated NDC costs are excluded from this analysis.
Results & discussion4
Distribution of financial risks across countries
The total NPV of treaty-protected oil and gas assets without a FID is highly heterogeneous, ranging from $57 billion (at $50/bbl) to $234 billion (at $100/bbl), with an average of $124 billion across all four price scenarios (Figure 1(a)). On average, the Global South constitutes nearly 70% ($87 billion) of the global mean NPV of these protected assets. More than 42% ($53 billion) of this global financial risk is borne by upper-middle income countries, such as Guyana ($11 billion), Venezuela ($10 billion) and Russia ($7 billion).5 High income countries constitute the second-largest share of these financial risks (20%; $25 billion). However, low and lower-middle income countries still face financial risks on par with their high income counterparts: $22 billion (18%) and $24 billion (20%), respectively (Figure 2(a)).
Figure 1. Potential price tags of cancelling treaty-protected oil/gas projects. The total net present value (NPV) of countries’ treaty-protected assets that are currently (a) without a final investment decision or (b) under development, under four estimates of future oil prices (in USD per barrel; $/bbl) and the mean NPV across all four estimates.
Figure 2. Comparison of ISDS financial risks between country income classifications. The total net present value (NPV) of treaty-protected assets in low, middle and high income countries that are currently (a) without a final investment decision or (b) under development, under four estimates of future oil prices (in USD per barrel; $/bbl) and the mean NPV across all four estimates.
Similar trends can be expected if countries also cancel oil/gas projects that are currently under development. The Global South contributes 52% ($32 billion) of the global mean NPV of these treaty-protected projects ($61 billion) (Figure 1(b)). The bulk of this global price tag is borne by upper-middle income countries (56%; $35 billion), with lower-middle and high income countries facing the lowest potential costs: $7 billion (12%) and $8 billion (13%), respectively (Figure 2(b)). Notably, Mozambique is the only low-income country with treaty-protected oil/gas projects under development, yet the valuation of these assets is so large – $11 billion (18%) – that they surpass the potential costs facing lower-middle and high income countries.
Figure 3 shows the financial flows of potential ISDS awards for countries’ treaty-protected oil/gas projects. On average, each country with treaty-protected assets without a FID has foreign investors from four different countries that could bring ISDS claims to arbitration. In the most extreme cases, like Russia, the United Kingdom, Egypt, Argentina and United Arab Emirates, claims could be brought by investors from more than 10 countries (Figure 3(a)). However, several countries only face substantial risks from investors in just one or two countries. For example, 99% of Guyana’s $11 billion price tag would be owed to Chinese investors, and although Venezuela could face claims from investors in 10 countries, 78% of their $10 billion price tag would be owed to Russian investors alone. Countries with protected projects that are currently under development tend to have investors from fewer countries – less than three on average (Figure 3(b)). Some examples include Indonesia and Guyana, who’s entire $3 billion mean NPV for protected oil/gas projects under development is linked to investors in the United Kingdom and China, respectively.
Figure 3. Potential financial flows of treaty-protected oil/gas projects. The share of host countries’ mean net present value (NPV) of treaty-protected assets that are currently (a) without a final investment decision or (b) under production that could be awarded to investors from different countries. Arrows reflect the direction of financial flows from the host country to the country of the foreign investor(s). Width of each country is proportional to the mean NPV of treaty-protected assets. Countries facing potential losses are ordered by income classification. Countries with a mean NPV less than $2 million are not shown.
Overall, investors from high income countries stand to benefit most from treaty protections (Figure 3). In total, 59% ($110 billion) of the global mean valuation of treaty-protected oil/gas projects could be owed to investors from six wealthy countries (France, The Netherlands, Italy, Japan, the UK, the US). Still, Chinese and Russian investors are also facing large potential payouts. Chinese investors stand to gain the largest potential awards from all their protected assets ($31 billion), and Russian investors could be awarded upwards of $11 billion, just $197 million less than Japanese investors. By comparison, the largest potential award for investors from a low or lower-middle income country is $728 million (Vietnam), which is only 0.39% of the total mean NPV of all protected assets.
Treaty contributions to ISDS risk
Most treaties protecting these assets apply to just a handful of projects in one or two countries. Of the 334 treaties protecting oil/gas projects without a FID, 44% cover less than 10 assets each (less than 0.1% of treaty-protected assets) and for 22% of treaties, the mean NPV of the assets they protect is less than $1 million. The bulk of the global ISDS price tag thus comes from a smaller number of treaties that cover hundreds or even thousands of oil/gas assets and some of the world’s most profitable assets (Figure 4(a)). The ECT is the single most important treaty, protecting 2002 oil/gas assets in 31 countries, which constitutes a total production volume of 18 MMbbl/d and a total valuation of $18 billion, on average. Protection from the ECT often overlaps with protections provided by BITs. Yet, even after excluding 603 assets that are protected by other treaties, the ECT remains the second-largest contributor to the global ISDS price tag ($8 billion), surpassed only by the China-Guyana BIT of 2003, which only applies to Guyana’s oil/gas projects (Figure 4(a)).
Figure 4. Contribution of individual treaties to ISDS risks. The top five treaties associated with the greatest number of assets, production volume (in millions of barrels per day; MMbbl/d), and mean net present value (NPV) of all treaty-protected oil/gas projects that are currently (a–c) without a final investment decision or (d–f) under development. Error bars in (c) and (f) represent the maximum and minimum NPV estimates under the four price scenarios. Contributions of the Energy Charter Treaty mentioned in the text are highlighted.
Only 81 treaties cover oil/gas projects that are currently under development. The ECT covers the most assets (28 total, 14 not protected by other treaties) but is only the sixth highest in terms of production volume protected (0.55 MMbbl/d) (Figure 4(b)). Nevertheless, the ECT remains one of the most significant treaties globally for projects under development, solely contributing $2.8 billion on average to ISDS risks, behind the Indonesia-United Kingdom BIT of 1976 ($3.4 billion) and China-Guyana BIT of 2003 ($3.2 billion).
Although the ECT is a critical treaty, it is notable that the protection it provides predominantly applies to wealthy European countries. For example, if the ECT was terminated, the mean NPV of all treaty-protected oil/gas projects (those without a FID and those under development) could decrease by $11 billion across 19 countries (Figure 5(a)). However, only six of these countries are low- or middle-income economies (Azerbaijan, Kazakhstan, Romania, Tajikistan, Ukraine and Yemen), and their total reduction of potential ISDS awards is just 10% of the total reduction expected for the 13 high income countries. The UK would benefit the most from ECT termination, avoiding liability for $5.3 billion worth of oil/gas projects on average – nearly half of the total NPV reduction for all ECT-protected countries.
Figure 5. Potential impacts of Energy Charter Treaty (ECT) termination or expansion. The mean net present value (NPV) of oil/gas assets both without a final investment decision and those under development that countries could (a) avoid liability for if the ECT is terminated or (b) be additionally liable for if the ECT is expanded.
Conversely, expansion of the ECT to the 32 countries that have already started preparing to accede to the treaty would disproportionately impact low and middle income countries. In total, ECT expansion could increase the mean NPV of oil/gas assets that countries could be liable for by $38 billion across 26 countries, only four of which are high income countries (Figure 5(b)). Expansion would be most consequential for Iraq ($17 billion increase) and Mauritania ($8 billion increase), but several countries would still face increased risks of $1–3 billion, such as Tanzania, Kazakhstan, Niger, Jordan and Senegal.
Financial stress of ISDS risk on climate investments
For most countries (74%), potential ISDS claims under the scenarios we consider constitute less than 1% of their national GDP. However, the financial risks from ISDS claims may be a significant impediment to countries’ capacity to implement necessary climate adaptation strategies, particularly for countries that are most vulnerable to the impacts of climate change and where potential ISDS awards represent a large share of GDP (Figure 6(a)). For example, Mozambique is in the top 25% of the world’s most vulnerable countries to climate change, yet the total mean NPV of all its treaty-protected oil/gas assets ($29 billion) is nearly twice the size of its GDP in 2019 ($15 billion). Guyana is also facing significant financial risks; the country is in the top 40% of most climate-vulnerable countries, but it faces ISDS risks upwards of $15 billion, which is nearly three times its GDP ($5.2 billion). Other highly vulnerable countries with a significant proportion of their GDP reflected in ISDS risks include Senegal ($2.4 billion; 10% of GDP) and the Republic of the Congo ($1.5 billion; 12% of GDP). Our data suggests that African countries are in a particularly precarious position, where the need for climate adaptation investment could be stifled from financial losses due to expensive investor payouts for climate action.
Figure 6. Implications for climate mitigation and adaptation capacity. (a) The relationship between countries’ climate vulnerability score and the mean net present value (NPV) of all their treaty-protected oil/gas assets as a share of their latest gross domestic product (GDP). (b) The relationship between countries’ mean annual CO2 emissions and the mean NPV of all their treaty-protected oil/gas assets as a share of renewable energy expenses needed to achieve their nationally determined contributions (NDC) to the Paris Agreement. Countries mentioned in the text that are of particular concern are highlighted.
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Of the 43 countries whose NDC costs have been quantified, 17 (40%) have ISDS price tags constituting less than 1% of those expected costs. However, there are several countries with high carbon emissions whose ISDS risks may jeopardize the necessary renewable energy investment to achieve their NDCs (Figure 6(b)). For example, Indonesia has some of the highest annual emissions in the world (473 Mt CO2 yr−1), but its total mean valuation of protected oil/gas assets ($3.9 billion) constitutes 17% of the costs needed to achieve their NDCs. Other countries that might struggle to find the fiscal space to reduce their high emissions and achieve their NDCs amidst the threat of ISDS claims include Nigeria ($8 billion; 26% of NDC costs) and Uzbekistan ($800 million; 24% of NDC costs). The outlook is particularly grim for the United Arab Emirates and Venezuela, where potential ISDS expenses are 7–30 times greater than the expected costs of their NDCs, respectively (Figure 6(b)).
Conclusions & policy recommendations
Our analysis demonstrates that some oil and gas producing countries, particularly in the Global South, face substantial financial risk from ISDS if they cancel upstream projects in line with a transition to net-zero by 2040. Adding coal, as well as fossil fuel infrastructure (e.g. pipelines, ports) and power generation, into the analysis would substantially increase the potential price tag. If left unchecked, ISDS could create a flow of finance from poor and climate-vulnerable countries to private companies based primarily in the Global North. This would undermine climate finance commitments, which rich countries are already falling behind on (Timperley, 2021). It will also reduce the public resources in poorer countries that are available for: mitigation and adaptation efforts; supporting communities that are currently dependent on the fossil fuel industry for employment; and assisting those communities that are already being severely impacted by climate change. ISDS will also obstruct a just transition by chilling/delaying the adoption of necessary government measures to limit oil and gas production in some countries.
As such, governments must urgently act to reduce their exposure to ISDS claims. There have been a wide variety of recommendations put forward for how to do this (OECD, 2022). We suggest three key strategies to be used concurrently. The first strategy is to immediately cease offering new exploration or exploitation permits/leases for upstream oil and gas. Continuing to offer new permits increases the risk that a state will fail to meet its climate targets and that it will face ISDS claims in the future. Unfortunately, many governments are reluctant to take this step. The invasion of Ukraine as sparked renewed interest (driven by fossil fuel lobbying) in many parts of the world in allowing new investment to ensure ‘energy security’ (Tabuchi, 2022). The US Inflation Reduction Act, which passed through Congress in August 2022 and is considered the ‘largest climate action bill in American history’, requires that the federal government issue new oil and gas leases (Bittle, 2022).
Our second proposed strategy to address the risk of ISDS claims from existing fossil fuel investors is for states to terminate as many investment treaties as possible, as quickly as possible. Some countries are already terminating old treaties (UNCTAD, 2021b) and those that have done so unilaterally do not appear to have suffered any negative impacts (Public Citizen, 2018). However, as noted previously, 96% of investment treaties have sunset clauses that can extend protections for existing investors for up to 20 years after termination. Given the imperative for decisive action on climate before 2030, it is critical that treaty termination be mutually agreed whenever possible, as this allows for sunset clauses to be invalidated. European countries have already done this for intra-EU BITs, in line with a decision by the European Court of Justice that these treaties are incompatible with EU law (European Commission, 2020). They should now extend this practice to their non-EU BIT partners and take the lead in developing a multilateral termination agreement (see further Johnson et al., 2018). Furthermore, as noted in Box 1, a coordinated withdrawal from the ECT by the EU and UK would immediately eliminate protection of all EU and almost all UK-hosted upstream oil and gas projects that are incompatible with net-zero by 2040, which is a much better outcome from a climate perspective than a slow ten-year phase-out of fossil fuel protection under a modernized agreement.
Box 1. ECT modernization or coordinated withdrawal?
On 24 June 2022, parties to the ECT announced that they had reached an agreement ‘in principle’ to ‘modernize’ the treaty (ECT, 2022). The agreement includes an immediate carve-out of intra-EU disputes, exclusion of new investments in fossil fuels after 15 August 2023, and a ten-year phase-out of protection for existing fossil fuel projects hosted in the UK and the EU (for a full analysis of the agreement in principle, see Brewin and Schaugg 2022). Parties will decide whether to adopt the modernized agreement at the next ECT Conference in late April 2023. If adopted, the modernized text will then have to be ratified by three quarters of the parties before it can enter into force. As such, there is still a window of opportunity for states to pursue other options. As of mid-November 2022, France, Germany, Luxembourg, Poland, Slovenia, Spain and the Netherlands had announced their intention to withdraw from the ECT.
In our dataset, almost all foreign investors in NZE-incompatible projects in the UK that are protected by the ECT are based in the EU, with only a small amount of investment hailing from Japan and Azerbaijan. A collective withdrawal between the UK and the EU that neutralised the ECT’s 20 year sunset clause would eliminate 99% of the ISDS risk for the UK. For NZE-incompatible projects in the EU, all ECT-covered investors are European or British and, therefore, collective withdrawal eliminates 100% of possible claims. In terms of projects under development, 92% of risk for the UK and 100% for the EU would be eliminated under a coordinated withdrawal.
A third strategy to deal with the risk remaining under treaties that cannot be quickly terminated would be to develop binding rules that would limit the amount of compensation that tribunals could award investors (Brewin et al., 2021). A simple and straightforward cap could be to set an upper limit at the amount of an investor’s sunk costs. However, Aisbett and Bonnitcha (2021) have a more sophisticated proposal that would be particularly appropriate in the case of assets stranded by supply-side climate policies. The underlying rationale for their approach is to allow states to respond to changing circumstances (e.g. changing scientific information and increased public concern about climate change, international commitments, etc.) while constraining opportunistic state behaviour (e.g. introducing new taxes purely to increase state revenue from a project). If the host state has not gained anything by initially allowing the investment to proceed and then subsequently interfering with it (as would be the case if oil and gas production is curtailed in pursuit of climate objectives), no compensation should be awarded.
We believe these strategies to stop issuing permits, terminate treaties and cap compensation are far superior to efforts to reform investment treaties through improvements in wording (see Alschner, 2022 for evidence that arbitrators continue to interpret ‘modern’ treaties in the same way as older ones) and the addition of exceptions clauses (which are likely to be ignored or even backfire – see Heath, 2021) or to establish a more formalized Investment Court System, as the EU has proposed (for the limitations of this proposal, see Dietz et al., 2019). In the absence of clear evidence that investment treaties provide any public benefit, the risks that they pose to a just transition make them ultimately untenable.
This research was undertaken, in part, thanks to funding from the Open Society Foundations (OSF), Rockefeller Brothers Fund (RBF), and the Canada Research Chairs Programme.
1 It is important to note that contracts signed between investors and the host state, e.g., Production Sharing Contracts, also provide investors with legal protections and may provide access to ISDS. We focus only on treaties for this article because contracts are generally not publicly available. We would also highlight that many treaties contain an ‘umbrella clause’ that effectively elevates contractual disputes into treaty disputes.
2 These comments were made at the OECD Conference on Investment Treaties and Climate Change, 10 May 2022.
3 The numbers increase when corporate structure is considered. See further Tienhaara et al. (2022b).
4 All dollar values reported are in USD.
5 It is important to note that the ownership of oil and gas assets in Russia has changed radically since we extracted the data from the Rystad Energy UCube database in early January 2022, as the oil majors have since divested from the country in response to the invasion of Ukraine.
- Aisbett, E., & Bonnitcha, J. (2021). Against balancing: Revisiting the use/regulation distinction to reform liability and compensation under investment treaties. Michigan Journal of International Law, 42(2), 231–290. https://doi.org/10.36642/mjil.42.2.against [Google Scholar]
- Alschner, W. (2022). Investment arbitration and state-driven reform: New treaties, old outcomes. Oxford University Press. [Crossref], [Google Scholar]
- Asselt, H. (2021). Governing fossil fuel production in the age of climate disruption: Towards an international law of ‘leaving it in the ground. Earth System Governance, 9, 100118. https://doi.org/10.1016/j.esg.2021.100118 [Crossref], [Google Scholar]
- Bilcon of Delaware, et al. v Government of Canada. (2015). Award on Jurisdiction and Liability, 17 March 2015, Permanent Court of Arbitration Case 2009-04, https://pca-cpa.org/en/cases/50/ [Google Scholar]
- Bittle, J. (2022). The Inflation Reduction Act promises thousands of new oil leases. Grist. https://grist.org/energy/inflation-reduction-act-oil-gas-leases-federalland/ [Google Scholar]
- BOGA. (2021). Who we are. https://beyondoilandgasalliance.com/who-we-are/ [Google Scholar]
- Bonnitcha, J. (2011). The problem of moral hazard and its implications for the protection of ‘legitimate expectations’ under the fair and equitable treatment standard. Investment Treaty News. https://www.iisd.org/itn/en/2011/04/07/the-problem-of-moral-hazard/ [Google Scholar]
- Bonnitcha, J. (2017). Assessing the impacts of investment treaties: Overview of the evidence (International Institute for Sustainable Development/IISD). https://www.iisd.org/system/files/publications/assessing-impacts-investment-treaties.pdf [Google Scholar]
- Bonnitcha, J., & Brewin, S. (2020). Compensation under investment treaties (IISD). https://www.iisd.org/sites/default/files/publications/compensation-treaties-best-practicies-en.pdf [Google Scholar]
- Bonnitcha, J., Poulsen, L., & Waibel, M. (2017). The political economy of the investment treaty regime. Oxford University Press. [Google Scholar]
- Bos, K., & Gupta, J. (2019). Stranded assets and stranded resources: Implications for climate change mitigation and global sustainable development. Energy Research & Social Science, 56, 101215. https://doi.org/10.1016/j.erss.2019.05.025 [Crossref], [Web of Science ®], [Google Scholar]
- Brada, J., Drabek, Z., & Iwasaki, I. (2021). Does investor protection increase foreign direct investment? A meta-analysis. Journal of Economic Surveys, 35(1), 34–70. https://doi.org/10.1111/joes.12392 [Crossref], [Web of Science ®], [Google Scholar]
- Brauch, M. (forthcoming). Reforming international investment law for climate change goals. In M. Mehling, & H. van Asselt (Eds.), Research handbook on climate finance and investment. Edward Elgar. [Google Scholar]
- Brewin, S., Cotula, L., Güven, B., Johnson, L., Nikièma, S., & Schaugg, L. (2021). Possible reform of investor-state dispute settlement: The assessment of damages and compensation. Submission to UNCITRAL Working Group III on ISDS Reform, Columbia Center on Sustainable Investment (CCSI), International Institute for Environment and Development (IIED), and IISD, https://ccsi.columbia.edu/sites/default/files/content/docs/CCSI_IISD_IIED%20Submission%20to%20UNCITRAL%20WG%20III%20on%20damages%5B20102%5D.pdf [Google Scholar]
- Brewin, S., & Schaugg, L. (2022). Uncertain climate impact and several open questions: An analysis of the proposed reform of the Energy Charter Treaty. IISD. https://www.iisd.org/publications/report/energy-charter-treaty-agreement-analysis [Google Scholar]
- Cabré, M., Gallagher, K., & Li, Z. (2018). Renewable energy: The trillion dollar opportunity for Chinese overseas investment. China and the World Economy, 26(6), 27–49. https://doi.org/10.1111/cwe.12260 [Crossref], [Web of Science ®], [Google Scholar]
- Climate Crisis Advisory Group (CCAG). (2021). The final warning bell: The most important assessment of humanity’s future on earth to date. https://static1.squarespace.com/static/60ccae658553d102459d11ed/t/612f491253769c13f5e52b1d/1630488861782/CCAG+Beyond+Net+Zero_V2.1.pdf [Google Scholar]
- Dafe, F., & Williams, Z. (2021). Banking on courts: Financialization and the rise of third-party funding in investment arbitration. Review of International Political Economy, 28(5), 1362–1384. https://doi.org/10.1080/09692290.2020.1764378 [Taylor & Francis Online], [Web of Science ®], [Google Scholar]
- Darby, M., & Gerretsen, I. (2019). Which countries have a net zero carbon goal? Climate Home News. https://www.climatechangenews.com/2019/06/14/countries-net-zero-climate-goal/ [Google Scholar]
- Dietz, T., Dotzauer, M., & Cohen, E. S. (2019). The legitimacy crisis of investor-state arbitration and the new EU investment court system. Review of International Political Economy, 26(4), 749–772. https://doi.org/10.1080/09692290.2019.1620308 [Taylor & Francis Online], [Web of Science ®], [Google Scholar]
- Di Salvatore, L. (2021). Investor–state disputes in the fossil fuel industry. IISD. https://www.iisd.org/system/files/2022-01/investor–state-disputes-fossil-fuel-industry.pdf [Google Scholar]
- European Commission. (2020). EU Member States sign an agreement for the termination of intra-EU bilateral investment treaties. https://ec.europa.eu/info/publications/200505-bilateral-investment-treaties-agreement_en [Google Scholar]
- Financial Times Editorial Board. (2022). Governments should not foot the bill for stranded assets, 21 February 2022, Financial Times. [Google Scholar]
- Fisher, J., Johnson, S., & Fritzsche, M. (2017). International arbitration damages research 2017 update, PwC. https://www.pwc.co.uk/forensic-services/assets/pwc-international-arbitration-damages-research-2017.pdf [Google Scholar]
- Flues, F. (2022). Coal ransom: How the Energy Charter Treaty drove up the costs of the German coal phase-out. PowerShift. https://www.globaljustice.org.uk/wp-content/uploads/2022/04/CoalRansom_ECTGermanCoalPhaseout_Apr2022.pdf [Google Scholar]
- Franta, B. (2021). “Early oil industry disinformation on global warming”. Environmental Politics, 30(4), 663–668. https://doi.org/10.1080/09644016.2020.1863703 [Taylor & Francis Online], [Web of Science ®], [Google Scholar]
- Gaukrodger, D. (2022). The Alignment of finance flows under the Paris Agreement, Background Note, OECD. https://www.oecd.org/investment/investment-policy/oecd-background-investment-treaties-finance-flow-alignment.pdf [Google Scholar]
- Green, F., & Denniss, R. (2018). Cutting with both arms of the scissors: The economic and political case for restrictive supply-side climate policies. Climatic Change, 150(1-2), 73–87. https://doi.org/10.1007/s10584-018-2162-x [Crossref], [Web of Science ®], [Google Scholar]
- Green, F., & Gambhir, A. (2020). Transitional assistance policies for just, equitable and smooth low-carbon transitions: Who, what and how? Climate Policy, 20(8), 902–921. https://doi.org/10.1080/14693062.2019.1657379 [Taylor & Francis Online], [Web of Science ®], [Google Scholar]
- Greenpeace, IISD and Oil Change International. (2022). Zeroing in: A guide for the finance sector on the IEA’s Net Zero Emissions scenario and its implications for oil and gas finance. https://priceofoil.org/content/uploads/2022/02/763.2.22-Greenpeace-Briefing-v4.pdf [Google Scholar]
- Heath, J. (2021). Eco Oro and the twilight of policy exceptionalism. Investment Treaty News. https://www.iisd.org/itn/en/2021/12/20/eco-oro-and-the-twilight-of-policy-exceptionalism/ [Google Scholar]
- Hodgson, M., Kryvoi, Y., & Hrcka, D. (2021). 2021 Empirical study: costs, damages and duration in investor-state arbitration. British Institute of International and Comparative Law, https://www.biicl.org/documents/136_isds-costs-damages-duration_june_2021.pdf [Google Scholar]
- IEA. (2021). Net zero by 2050: A roadmap for the global energy sector. https://www.iea.org/reports/net-zero-by-2050 [Google Scholar]
- Intergovernmental Panel on Climate Change. (2022). Climate change 2022: Mitigation of climate change (technical summary). https://www.ipcc.ch/report/ar6/wg3/downloads/report/IPCC_AR6_WGIII_Full_Report.pdf [Google Scholar]
- Johnson, L. (2018). A fundamental shift in power: Permitting international investors to convert their economic expectations into rights. UCLA Law Review Discourse. https://www.uclalawreview.org/fundamental-shift-in-power/ [Google Scholar]
- Johnson, L., Coleman, J., Güven, B., & Sachs, L. (2018).Clearing the path: withdrawal of consent and termination as next steps for reforming international investment law. CCSI Policy Paper. https://scholarship.law.columbia.edu/sustainable_investment_staffpubs/154 [Google Scholar]
- Kahale, G. I. I. I. (2022). Submission to the OECD’s Public Consultation on Investment Treaties and Climate Change. In OECD “Investment Treaties and Climate Change, Public Consultation, Compilation of Submissions. OECD. https://www.oecd.org/investment/investment-policy/OECD-investment-treaties-climate-change-consultation-responses.pdf [Google Scholar]
- Lazarus, M., & van Asselt, H. (2018). Fossil fuel supply and climate policy: Exploring the road less taken. Climatic Change, 150(1–2), 1–13. https://doi.org/10.1007/s10584-018-2266-3 [Crossref], [Web of Science ®], [Google Scholar]
- Lobel, N., & Fermeglia, M. (2018). Investment protection and unburnable carbon: Competing commitments in international investment and climate governance. Dirit Commer Int, 4, 945–976. [Google Scholar]
- Meager, E. (2022). Cop26 targets pushed back under threat of being sued. Capital Monitor, 14 Jan 2022. https://capitalmonitor.ai/institution/government/cop26-ambitions-at-risk-from-energy-charter-treaty-lawsuits/ [Google Scholar]
- Muttitt, G. (2016). The Sky’s Limit: Why the Paris climate goals require a managed decline of fossil fuel production (Oil Change International). https://priceofoil.org/2016/09/22/the-skys-limit-report/ [Google Scholar]
- Muttitt, G., & Kartha, S. (2020). Equity, climate justice and fossil fuel extraction: Principles for a managed phase out. Climate Policy, 20(8), 1024–1042. https://doi.org/10.1080/14693062.2020.1763900 [Taylor & Francis Online], [Web of Science ®], [Google Scholar]
- Newell, P., & Paterson, M. (1998). A climate for business: Global warming, the state and capital. Review of International Political Economy, 5(4), 679–703. https://doi.org/10.1080/096922998347426 [Taylor & Francis Online], [Web of Science ®], [Google Scholar]
- Nikièma, S. (2012). Best practices: Indirect expropriation. IISD. https://www.iisd.org/system/files/publications/best_practice_indirect_expropriation.pdf [Google Scholar]
- Notre Dame Global Adaptation Initiative. (2021). ND-GAIN Country Index. ND-GAIN. https://gain.nd.edu/our-work/country-index [Google Scholar]
- Nugent, C. (2022) No Oil Producer Wants to Be the First to Give Up the Fuel. Except Gustavo Petro’s Colombia. Time, 22 June, https://time.com/6189763/colombia-oil-gustavo-petro/ [Google Scholar]
- OECD. (2022). Investment treaties and climate change, public consultation, compilation of submissions. https://www.oecd.org/investment/investment-policy/OECD-investment-treaties-climate-change-consultation-responses.pdf [Google Scholar]
- Oreskes, N., & Conway, E. (2011). Merchants of doubt: How a handful of scientists obscured the truth on issues from tobacco smoke to global warming. Bloomsbury Publishing. [Google Scholar]
- Paparinskis, M. (2021). Crippling compensation in the International Law Commission and investor–state arbitration. ICSID Review, 37(1–2), 289–312. https://doi.org/10.1093/icsidreview/siab029. [Crossref], [Google Scholar]
- Perrone, N. (2021). Investment treaties and the legal imagination: How foreign investors play by their Own rules. Oxford University Press. [Crossref], [Google Scholar]
- Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay. (2016). ICSID Case No. ARB/10/7, Award, 8 July 2016. [Google Scholar]
- Piggot, G., Verkuijl, C., van Asselt, H., & Lazarus, M. (2020). Curbing fossil fuel supply to achieve climate goals. Climate Policy, 20(8), 881–887. https://doi.org/10.1080/14693062.2020.1804315 [Taylor & Francis Online], [Web of Science ®], [Google Scholar]
- Pohl, J. (2018). Societal benefits and costs of international investment agreements: A critical review of aspects and available empirical evidence. OECD Working Papers on International Investment No. 2018/01. Paris: OECD Publishing. [Google Scholar]
- Public Citizen. (2018). Termination of bilateral investment treaties has not negatively affected countries’ foreign direct investment inflows. Research Brief. https://www.citizen.org/wp-content/uploads/pcgtw_fdi-inflows-from-bit-termination_1.pdf [Google Scholar]
- Rafaty, R., Srivastav, S., & Hoops, B. (2020). Revoking coal mining permits: An economic and legal analysis. Climate Policy, 20(8), 980–996. https://doi.org/10.1080/14693062.2020.1719809 [Taylor & Francis Online], [Web of Science ®], [Google Scholar]
- Rockhopper Exploration. (2022). Arbitration award, 24 August. https://rockhopperexploration.co.uk/2022/08/successful-arbitration-outcome/ [Google Scholar]
- Rystad Energy. (2022). UCube. https://www.rystadenergy.com/energy-themes/oil–gas/upstream/u-cube/ [Google Scholar]
- Sachs, L., Johnson, L., & Merrill, E. (2020). Environmental injustice: How treaties undermine human rights related to the environment. La Revue des Juristes de Sciences Po, 18, 90. https://scholarship.law.columbia.edu/sustainable_investment_staffpubs/71 [Google Scholar]
- Samples, T. (2019). Winning and losing in investor-state dispute settlement. American Business Law Journal, 56(1), 115–175. https://doi.org/10.1111/ablj.12136. [Crossref], [Google Scholar]
- Shazad, A. (2020). Pakistan in talks with Tethyan Copper to resolve $5.8 billion dispute – sources. Reuters, 12 November 2020, https://www.reuters.com/article/pakistan-mining-tethyan-idUSKBN27S2N7 [Google Scholar]
- Sornarajah, M. (2017). The international Law on foreign investment. Cambridge University Press. [Google Scholar]
- Stockholm Environment Institute (SEI), IISD, Overseas Development Institute (ODI), E3G, and UN Environment Programme (UNEP). (2021). The Production Gap Report 2021. http://productiongap.org/2021report [Google Scholar]
- Supran, G., & Oreskes, N. (2021). Rhetoric and frame analysis of ExxonMobil’s climate change communications. One Earth, 4(5), 696–719. https://doi.org/10.1016/j.oneear.2021.04.014 [Crossref], [Google Scholar]
- Tabuchi, H. (2022). Oil industry uses Ukraine invasion to push for more drilling at home. New York Times. https://www.nytimes.com/2022/02/26/climate/ukraine-oil-lobby-biden-drilling.html [Google Scholar]
- TC Energy Corporation and TransCanada PipeLines Limited. (2021). Request for Arbitration, 22 November 2021. TC Energy Corporation and TransCanada Pipelines Limited v. United States of America (ICSID Case No. ARB/21/63). https://www.state.gov/wp-content/uploads/2022/05/TCE-v-US-Request-for-Arbitration-Nov-22-2021.pdf [Google Scholar]
- Tienhaara, K. (2018). Regulatory chill in a warming world: The threat to climate policy posed by investor-state dispute settlement. Transnational Environmental Law, 7(2), 229–250. https://doi.org/10.1017/S2047102517000309 [Crossref], [Web of Science ®], [Google Scholar]
- Tienhaara, K., & Cotula, L. (2020). Raising the cost of climate action? Investor-state dispute settlement and compensation for stranded fossil fuel assets. IIED. https://pubs.iied.org/17660iied [Google Scholar]
- Tienhaara, K., Thrasher, R., Simmons, B. A., & Gallagher, K. P. (2022a). Investor-state disputes threaten the global green energy transition. Science, 376(6594), 701–703. https://doi.org/10.1126/science.abo4637 [Crossref], [PubMed], [Google Scholar]
- Tienhaara, K., Thrasher, R., Simmons, B. A., & Gallagher, K. P. (2022b). The Energy Charter Treaty’s Protection of 1.5°C-incompatible Oil and Gas Assets. GDP Center Policy Brief 021, https://www.bu.edu/gdp/files/2022/06/GEGI_PB_021_FIN.pdf [Google Scholar]
- Timperley, J. (2021). The broken $100-billion promise of climate finance — and how to fix it. Nature News, 20 October 2021. https://www.nature.com/articles/d41586-021-02846-3 [Google Scholar]
- Trout, K., Muttitt, G., Lafleur, D., Van de Graaf, T., Mendelevitch, R., Mei, L., & Meinshausen, M. (2022). Existing fossil fuel extraction would warm the world beyond 1.5°C. Environmental Research Letters, 17(6), 064010. https://doi.org/10.1088/1748-9326/ac6228 [Crossref], [Google Scholar]
- UNCTAD. (2021a). International Investment Agreements Navigator. https://investmentpolicy.unctad.org/international-investment-agreements [Google Scholar]
- UNCTAD. (2021b). Recent developments in the IIA regime: Accelerating reform. IIA Issues Note. https://unctad.org/system/files/official-document/diaepcbinf2021d6_en.pdf [Google Scholar]
- Van Harten, G. (2016). Who has benefited financially from investment treaty arbitration? An evaluation of the size and wealth of claimants. Osgoode Legal Studies Research Paper Series 135. http://digitalcommons.osgoode.yorku.ca/olsrps/135 [Google Scholar]
- Van Harten, G., Porterfield, M., & Gallagher, K. (2015). Investment provisions in trade and investment treaties: The need for reform. GEGI Exchange Issue 005, Boston University. https://www.bu.edu/gdp/files/2017/07/Investor-State-Disputes-Policy-Brief.pdf [Google Scholar]
- Vaudano, M. (2018). How the lobbies used the threat of ISDS to neuter the Hulot Act. Le Monde, 4 September 2018. [Google Scholar]
- Verbeek, B. (2021). Compensation for stranded assets?. SOMO. https://www.somo.nl/compensation-for-stranded-assets/ [Google Scholar]
- Wellhausen, R. L. (2016). Recent trends in investor–state dispute settlement. Journal of International Dispute Settlement, 7(1), 117–135. https://doi.org/10.1093/jnlids/idv038 [Crossref], [Web of Science ®], [Google Scholar]
- Welsby, D., Price, J., Pye, S., & Ekins, P. (2021). Unextractable fossil fuels in a 1.5 °C world. Nature, 597(7875), 230–234. https://doi.org/10.1038/s41586-021-03821-8 [Crossref], [PubMed], [Web of Science ®], [Google Scholar]
- Wilensky, M. (2014). Potential liability for climate-related measures under the Trans Pacific Partnership. Center for Climate Change Law White Paper, Columbia University, https://web.law.columbia.edu/sites/default/files/microsites/climate-change/wilenskytranspacificpartnership8-7-14_-_revised.pdf [Google Scholar]
- World Bank. (2022). World Development Indicators Database. https://datacatalog.worldbank.org/dataset/world-development-indicators [Google Scholar]
- Wright, C., Nyberg, D., & Bowden, V. (2021). Beyond the discourse of denial: The reproduction of fossil fuel hegemony in Australia. Energy Research & Social Science, 77, 102094. https://doi.org/10.1016/j.erss.2021.102094 [Crossref], [Google Scholar]
- Zárate, J., Baltag, C., Behn, D., Bonnitcha, J., Luca, A., Hestermeyer, H., Langford, M., Mistelis, L., Rodríguez, C., Shaffer, G., & Weber, S. (2020). Duration of investor-state dispute settlement proceedings. Journal of World Investment & Trade, 21(2-3), 300–335. https://doi.org/10.1163/22119000-12340174. https://www.jus.uio.no/ior/english/people/aca/malcolml/22119000_021_02-03_s004_text.pdf [Crossref], [Google Scholar]