Browsing by Subject "kansainvälinen investointioikeus"

There are only a couple of years left to collectively cut emission so, that the global climate does not heat up dangerously and irreversibly. Climate litigation refers to utilizing legal disputes in order to speed up climate action. Third wave litigation are diverse in their argumentation, from human rights based argument to administrative arguments and the latest development, corporate law based arguments. A subcategory of the latter type is a dynamic where the shareholder sues the company directorship. These disputes are based on questioning, whether the company directorship has fulfilled its fiduciary duties and acted in due diligence in analyzing the political risk of investing in fossil energy, while 196 nations out of around 200 has legally bound themselves to radically cut the use of fossil fuels through the Paris Agreement. Fossil companies have utilized international investment protection agreements in demanding compensation for their investment that have lost its value due to the activities of the host state. The most important investment agreement in the energy sector, the multilateral Energy Charter Treaty (ECT), has been utilized in intra-EU investment disputes a lot. In the past years, the Court of Justice of the European Union (CJEU) and various arbitral tribunals have had an ongoing dispute on whether investment protection agreements are applicable at all within the EU due to the primacy and autonomy of EU law. The Court has in its recent case law Achmea/Komstroy established, that investment agreements are not compatible with EU law in intra-EU cases. In Komstroy, it was confirmed that the ECT dispute settlement mechanism in Article 26(1) is not applicable in intra-EU disputes. Against this background the research questions are 1) what is the significance of the ECT arbitration clause being removed to the energy business decision making in risk management within the EU, and 2) what is the overall assessment of the possibilities to invest in fossils while fulfilling the fiduciary duties in EU in relation to the growing climate risk. These questions are analyzed through 1) reviewing the logic of international investment and the ECT in this context, 2) accounting for the discussion in the auspices of the CJEU that has led to the rejection of the ECT Article 26(1) in intra-EU disputes, 3) analyzing the fiduciary duty as a dynamic duty to manage risks in the era of climate crisis and 4) discussing the significance of investment protection clauses in managing risk in the energy sector as a part of fiduciary duties. The main method is doctrinal, but in the contextualization of the thesis critical approaches are utilized. Furthermore, in order to analyze the fourth sub-research question, empirical international business literature is utilized. The aim is to show, that fossil investments are not only against the spirit of the Paris Agreement but also unlawful at least within the EU. This is because it is impossible to fulfill the fiduciary duties and the requirements of the Directive 2014/95/EU on non-financial disclosure on (climate) risks and continue investing in fossil energy. As the investment protection clause is unusable the latest after Komstroy, a diligent director will conclude that the risks in fossil investment are too big. The argumentation of this thesis may be utilized in climate litigation.