Thank you so much, Catherine, and to Sean and to Mark and all of you who have put this together. The annual ASIL event is something all of us lawyers look forward to every year, where we have an opportunity to hear some of the remarkable things that people are doing and thinking about and moving the conversation forward, and I agree it is a critical moment.

The title of our panel promises to explore whether investor-state dispute settlement (ISDS) is a barrier, a facilitator, or neither regarding the global fight against climate change. This is an issue of urgent concern because there is a growing consensus that the world economy needs to transition away from fossil fuels aggressively to avoid the worst case climate scenarios, which would require a massive flow of investment out of fossil fuel production and into the production of renewable energy sources (RES). Broadly speaking, state policymakers have two sets of tools at their disposal to encourage that transition: (1) tools to encourage investment in RES (carrots); and (2) tools to discourage investment and hasten divestment in hydrocarbon production (sticks). One way to frame the question is whether the ISDS system—designed as it is to protect foreign investment in a largely policy-neutral way—acts more as a facilitator of carrot-side policies, more as a barrier to stick-side policies, or neither? Put somewhat differently, does a strong ISDS system that would facilitate RES investment necessarily cause regulatory chill of stick-side policies aimed at divestment from fossil fuels, or is there a way to harmonize these seemingly divergent goals?

Since its accession to the World Trade Organization (WTO), China's exports have been growing exponentially. In 2009, China became the world's top goods exporter. Four years later, China unseated the United States as the top trading nation in the world. In contrast to the burgeoning Chinese economy, the United States and Europe have been suffering from economic decline since the global financial crisis in 2008. China regards its rise as a long overdue restoration of its rightful position, as it has been the largest economy in the world for most of its history, except the brief aberration over the past 150 years. The Western powers, however, view China's rapid development with suspicion, as they attribute China's success mostly to its state-led development model, with state-owned enterprises, massive subsidies, and heavy government intervention playing a major role.

The Order of the International Court of Justice (ICJ) of January 23, 2020 on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) might form a preliminary starting point for this brief address. The Order confirms that public international law defines through international treaties, customary international law, and general principles legally binding commitments and rights of states. As a matter of consequence, based upon those norms, judgments, orders, and awards of international courts and tribunals are legally binding on the parties to the dispute in question to the extent the adjudicating body has jurisdiction.

What role should non-state actors have in the work of international organizations? It is particularly fitting that this panel is titled “between participation and capture,” because the phrase calls up the conflicting values that animate this question. When we think of non-state actors “participating” in the work of international organizations, we think about open, transparent organizations that are receiving the benefit of diverse perspectives and expertise. We may associate this phrase with process, access, and legitimacy in governance. On the other hand, when we think about non-state actors “capturing” the agenda of international organizations, we have a conflicting set of mental images: we imagine corruption, mission-drift, and the erosion of legitimacy in global governance. Openness is both valuable and dangerous.

Governance, defined in its simplest form, is about the way in which decisions are made, who makes them, and in whose interests such decisions are made.

This panel was convened at 11:30 a.m., Thursday, June 25, 2020, by its moderator James Kateka of the International Tribunal for the Law of the Sea, who introduced the panelists: Mamadou Hébié of the International Court of Justice; Marc Weller of the University of Cambridge Faculty of Law; Milena Sterio of Cleveland-Marshall College of Law; and Nawi Ukabiala of Debevoise & Plimpton LLP.

Welcome to this panel on Using Old Tools in New Ways: The New Economic Word Order. My name is Céline Lévesque and I am honored to moderate this virtual panel from Ottawa.

Bilateral investment treaties (BITs) containing traditional clauses such as Most Favorite Nation (MFN), National Treatment (NT), and Free and Equitable Treatment (FET) have been used as old tools to protect Foreign Direct Investments (FDI) throughout the African continent. African states have formed different economic blocks in order to facilitate intra-Africa investment trades and FDI protection. However, investment laws in the continent remain very fragmented. In 2005, African states enacted the Pan-African Investment Code (PAIC), which did not include provisions for traditional Investor State Dispute Settlement (ISDS) but included exceptions to MFN and NT while omitting FET. The PAIC is a classic example of the African perspective in using old tools in new ways to promote more economic nationalism and sustainable development in Africa while maintaining a balance between investors’ protection and states’ sovereign right to regulate.

Investment law and arbitration are currently the subject of profound reform discussions. Whether the investment law and arbitration reforms and reform proposals can properly be categorized as “old tools” that are used in “new ways,” and more generally whether the reforms in the end will result in a “new economic world order” remains however to be seen. I argue that the “old tools” in international investment law and arbitration are not always simply “old tools” or an exercise in conservativism. Notably when one looks at substantive norms in investment treaties, the apparent “old tools” have been perfected and modernized. In other instances, such as the proposal for an “investment court,” which could hardly be considered an “old tool,” reform proposals do not seem to radically shift the investment regime toward a “new economic world order.”

States interact with other states in a myriad of ways. One such way is by the issuance of economic sanctions intended to impact another state's policies or practices. Economic sanctions are an “old tool,” which historically have been grounded on the issuing state's own overarching goals and policies. However, economic sanctions are becoming more and more a means of exerting political influence over another state. One can question whether this is in fact “using an old tool in a new way.” I would suggest this practice, when implemented in particular ways, can complicate the “new economic world order” in such a way as to create perverse incentives within a state's own sanctions regime.

Professor Cymie Payne introduced this session, the final event for the Society's Signature Topic, “Beyond National Jurisdiction,” which examined international law governing the oceans, polar regions, cyberspace, and outer space.

There is no doubt that the discourse around climate change has matured over the years and has become one of the central features of international relations. We all know of the international legal regime that has developed to deal with climate change, starting from the United Nations Framework Convention on Climate Change and finishing with the Paris Agreement. Climate change is also either at the core or on the fringes of many other international debates, from international security to international economic relations. In 2018, the Intergovernmental Panel on Climate Change released a (yet again) stark warning alerting to the risks of not moving towards a 1.5 degrees goal, rather than a 2.0 degrees as the Paris Agreement seems to be suggesting. The truth is that the trend countries are moving toward with their pledges in their nationally determined contributions is not going to meet the 2.0 objective, let alone the 1.5 degrees objective. Against this background, it is not surprising that sectors of society interested in pursuing stronger climate change policies have explored multiple governance routes to take forward their agenda. This has led to the emergence of a polycentric and multilevel governance in the field of climate change. It is within this greater picture that climate change litigation has become a key facet in the fight against climate change.

Hari Osofsky began by making a statement of support for Black Lives Matter. Her presentation then focused on the evolution and regulatory impact of climate change litigation around the world, examining its role within the broader context of multi-level climate change governance and as a form of strategic litigation.

Climate litigation in the Global South tends to be couched in rights-based clams including the right to life and a clean and healthy environment. Jolene Lin explained that this is in part due to the fact that many jurisdictions in the Global South have embedded environmental rights in their constitutions and, in some cases, courts have interpreted the right to life to include the right to a clean and healthy environment.

Daniel Magraw emphasized the human rights turn in climate litigation. There is a well-established relationship between human rights and the environment, and it is now generally acknowledged that a healthy environment is necessary for the enjoyment of a vast array of human rights. Importantly, environmental harm—including climate change—interferes with human rights.

Laura Shay Lynes's presentation focused on the rights of nature and the extent to which it could be used in climate change litigation. One prominent example is the grant of legal personhood to the Whanganui River in New Zealand.

Thank you all for joining us today. My name is David Bigge, and I am the co-chair of the International Courts and Tribunals Interest Group, which organized this particular panel. I would like to, up front, thank the sponsor for this panel, Curtis Mallet.