Đỗ Thị Thu Hà

Nguyễn Phú Kim Thư

 K41 Students, Ho Chi Minh city University of Law

Abstract

Foreign investment and environment protection is at the heart of sustainable development. Nevertheless, in the last few years, international investment disputes related to environment issues have been on the increase. The dispute practice has manifested that the state’s right to regulate the environment, which is inherent in the sovereignty of state, can be challenged by the claim for breach of investment protection obligations and compensation request made by foreign investors. Furthermore, the traditional international investment agreements commonly prescribe the obligation of host states to foreign investment, but rarely incorporate the symmetrical obligation for foreign investor to the environment protection in the host state. This creates the imbalance between host state and foreign investor. This fact raises the urgent need for a tool to balance the rights and interest of host state and foreign investor. One of the tools expected to contribute to the reconciliation, and establish a more solid basis for host state to pursue environmental goal besides the economic development goal, is the environmental provisions in the new generation free trade agreements. This article will analyze the roles of the environmental provisions in the new generation free trade agreements in reconciling the asymmetry between the foreign investor’s rights and the state’s right to regulate the environment.

Keywords: environmental provisions, right to regulate, reconciling the asymmetry, foreign investment, new generation free trade agreements