Investor-state arbitration and climate challenges
This Legal Voices for the Future Knowledge (LVF) Session is hosted in partnership with LSE’s Grantham Research Institute. The session will be led by WilmerHale Senior Associate Xiaohan Cai and LVF Stewardship Committee member Carol Yuen.
The session will explore the challenges of states balancing obligations to foreign investors in energy and mining projects with state duties to combat climate change and environmental degradation. The session will also critically look at whether the current investment treaty system is an obstacle or could be a vehicle for the urgent energy transition.
Creative content
We will start this session by screening the first 10 minutes of a short documentary called The Tribunal, and have a breakout discussion at the end of the knowledge session (after the presentation and panel). Our discussion questions will relate to the entire knowledge session. If you have some time, we encourage you to watch the whole documentary (which is only 30 minutes long!) beforehand.
Presentation
The presentation, given by Xiaohan Cai, will introduce the investor-state dispute settlement (ISDS) framework and institutions. It will explain the obligations of States to foreign investors (for instance in bilateral investment treaties (BITs) and the Energy Charter Treaty), and how these obligations may conflict with State obligations on climate change.
The presentation will also give an overview of recent developments in relation to arbitral tribunals’ consideration of States’ environmental regulatory duties, energy transition and critical minerals, and sustainable investments.
Panel discussion
We will be joined by an expert panel from private practice and academia to discuss the impact of investor-state arbitration on climate change and the environment, and potential reforms in ISDS.
Judy Fu is a commercial barrister at 3VB with wide litigation and arbitration experience. She has acted in disputes concerning oil and gas (upstream and downstream), renewables, mining and metals, and commodities trading industries. She has also acted for and advised both companies and non-governmental organisations on ESG, energy transition, climate risk, and decarbonisation issues. Notable recent litigation includes ClientEarth v Shell [2023] EWHC 1897 (Ch) and The Pan NOx Emissions (Dieselgate) Group Litigation.
Lucia Bizikova is an Associate in the Litigation/Controversy Department and a member of the International Arbitration Practice Group at WilmerHale. Her practice focuses on commercial and investment treaty arbitration. Lucia has represented clients from different sectors including energy and ESG, in institutional and ad hoc arbitrations under a variety of arbitral rules. She is also a member of the Young and Young at Heart (YAYAH) subcommittee, which co-organizes the annual London International Disputes Week (LIDW).
Dr Oliver Hailes is an Assistant Professor at the LSE Law School where he teaches and researches international law and arbitration, including energy, investment, and environmental law. He is also an Associate of the Grantham Research Institute and Assistant General Editor of the ICSID Reports. Oliver holds an LLM and PhD from the University of Cambridge. He was previously a lawyer in New Zealand.
Saadia Bhatty is a Partner and Co-head of Gide’s International Dispute Resolution team in London. She specialises in international arbitration and public international law. Saadia has more than 15 years’ experience (including in Paris, New York and London) advising private and state entities in cross-border disputes, in particular in international arbitration proceedings (commercial and investment) subject to the laws of both civil and common law jurisdictions, particularly in the energy, oil and gas, and construction sectors, notably in Africa, the Middle East and Asia. Saadia also advises governments on the drafting/reform of their investment treaties. Saadia sits as an arbitrator on several arbitration panels and regularly teaches international arbitration in universities across the world. She is qualified to the New York Bar and the Paris Bar.
How to join
Please register in advance here to join this event in person at LSE or online.
About Legal Voices for the Future
Legal Voices for the Future is a collaborative knowledge-sharing forum established by young practitioners from different fields of law, whose objective is to give voice to a new generation of lawyers. We do so by holding monthly knowledge sessions open to everyone – lawyers and non-lawyers alike.)