Arbitrating Climate Change: Regulatory Regimes and Investor-State Disputes
![handle is hein.journals/climatla1 and id is 61 raw text is: Climate Law 1 (2010) 63-92 63
DOI 10.3233/CL-2010-004
IOS Press
Arbitrating climate change: Regulatory
regimes and investor-state disputes
Kate Miles'
I. INTRODUCTION
Climate change already regularly features in the courts. The challenges created by climate change,
and the domestic and international measures designed to mitigate its effects, are generating issues
over which an array of disputes are occurring.2 They are manifesting in global-scale questions
of climate change causation and liability.3 Matters of administrative law have been raised in
the European Union concerning the scope of governance and authority in the determination of
National Allocation Plans.' Challenges to the operation of the EU Emissions Trading Scheme5
have been filed with the European Court of Justice.6 Inter-state non-compliance procedures have
been established under the Kyoto Protocol.' The potential for conflict between international trade
1 Lecturer, Faculty of Law, University of Sydney, Australia (kate.miles @ sydney.edu.au); Legal Research Fellow,
Centre for International Sustainable Development Law, Montreal, Canada.
2 Brian Preston, Avenuesfor Litigating the Effects of Climate Change, New South Wales Law Society Journal 49
(November 2009).
See for example, claims brought in the United States against carbon-intensive industries in Connecticut v.
American Electric, WL 2996729 (CA2 NY, 2009); see also claims brought by Inuit peoples against oil and coal
companies for the erosion of their territories as a result of climate change in Kilvalina v. ExxonMobil, WL 295157
(CD Cal, 2008).
4 United Kingdom v. Commission, Case T-143/05 (joined with Case T-178/05 United Kingdom v. Commission),
[2005] ECR II 4807; Germany v. Commission, Case T-374/04, [2007] ECR II 4431; Poland v. Commission, Case
T-183/07, [2007] ECR 11152; see the discussion in Navraj Singh Ghaleigh, Emissions Trading Before the European
Court of Justice: Market Making in Luxembourg, in Legal Aspects of Carbon Trading: Kyoto, Copenhagen and
Beyond (David Freestone and Charlotte Streck, eds., 2009).
5 Council Directive 2003/87/EC, Establishing a Scheme for Greenhouse Gas Emission Allowance Trading Within
the Community and Amending Council Directive 96/61/EC, O.J. (L 275) 32 (2003).
6 Soci4t Arcelor Atlantique et Lorraine et al. v. Premier Ministre, Ministre de l'Economie, des Finances et de
l'Industrie, Ministre de l'Ecologie et du Diveloppement Durable, Case C- 127/07, Official Journal of the European
Union, 26/5/2007, Cl 17/8; Arcelor S.A.v European Parliament and Council (2004) Case T- 16/04.
7 See the discussion in Catherine Redgwell, Non-Compliance Procedures and the Climate Change Convention, in
Inter-Linkages: The Kyoto Protocol and the International Trade and Investment Regimes, 43 (W. Bradnee Chambers,
ed., 2000).
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Arbitrating Climate Change: Regulatory Regimes and Investor-State Disputes
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