The Incorporation and Interpretation of WTO-Style Environmental Exceptions in International Investment Agreements

Abstract

This article presents a recent study of the incorporation of general environmental exceptions – modelled on GATT Art XX or GATS Art XIV – in international investment agreements (IIAs), as based on a survey of 113 IIAs signed between 2010 and 2015. It uses the results of this survey to argue that the jurisprudence of the WTO cannot be assumed to offer a definitive interpretation of such exceptions, instead assessing how variations in the text and context of the general environmental exceptions in IIAs might limit or broaden the scope of the protected environmental policy space, and arguing for a treaty-by-treaty approach in terms of interpretation.