The long-existing debate surrounding the environmental impacts of investment liberalism has been intensified by the rapid growth of an international investment regime, which now consists of more than 3,000 international investment agreements (“IIAs”) and more than 700 investor-state arbitration cases. Many scholars, states, and non-governmental organizations (“NGOs”) fear this effective investment protection regime may intrude on or “chill” the host state’s sovereign right to regulate public interests, including environmental protection. An unsolved task for arbitral tribunals is to distinguish non-compensable legitimate environmental regulation from regulatory conduct that triggers compensation paid by host states to foreign investors.

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