The fundamental idea of achieving free cross-border transactions underpins the areas of both international trade and investment law. Yet, the trade and finance systems are governed via distinctive regulatory regimes, based, on the one hand, on the World Trade Organization and, on the other, on bilateral and multilateral investment agreements. Within this framework, while they are uniformly justified as ‘exceptions’ to liberalisation aiming to create a level playing field, climate restrictions are implemented via different enforcement mechanisms. Thus, on the one hand, the EU envisages the carbon border adjustment mechanism (CBAM) as the main tool to achieve trade competitiveness. On the other, the Union intends to prioritise sustainable investment by allowing the (indirect) expropriation of financial flows in the fossil fuel industry. The chapter compares the rationale and functioning of climate enforcement mechanisms in the areas of international trade and investment, specifically developing and assessing the hypothesis that these might be justified as countermeasures. Arguably, the theory of countermeasures can validly justify the adoption of CBAMs, which are typically inter-State measures, in the area of trade, but not expropriation of investment without compensation, which affects primarily corporations and does not fulfil the requirement of aiming to induce the responsible State to resume performance of the obligation to curb GHG emissions.

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Justifying Climate Enforcement Mechanisms in EU Trade and Investment Agreements: International Countermeasures?

  • Ottavio Quirico

摘要

The fundamental idea of achieving free cross-border transactions underpins the areas of both international trade and investment law. Yet, the trade and finance systems are governed via distinctive regulatory regimes, based, on the one hand, on the World Trade Organization and, on the other, on bilateral and multilateral investment agreements. Within this framework, while they are uniformly justified as ‘exceptions’ to liberalisation aiming to create a level playing field, climate restrictions are implemented via different enforcement mechanisms. Thus, on the one hand, the EU envisages the carbon border adjustment mechanism (CBAM) as the main tool to achieve trade competitiveness. On the other, the Union intends to prioritise sustainable investment by allowing the (indirect) expropriation of financial flows in the fossil fuel industry. The chapter compares the rationale and functioning of climate enforcement mechanisms in the areas of international trade and investment, specifically developing and assessing the hypothesis that these might be justified as countermeasures. Arguably, the theory of countermeasures can validly justify the adoption of CBAMs, which are typically inter-State measures, in the area of trade, but not expropriation of investment without compensation, which affects primarily corporations and does not fulfil the requirement of aiming to induce the responsible State to resume performance of the obligation to curb GHG emissions.