Treaty Drafting for Environmental Regulations

Treaty Drafting for Environmental Regulations Early Formulation NAFTA (1992) 1. Nothing in the Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns. 2. The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health; safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from; or offer to waive or otherwise derogate from; such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Party considers that another Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement. Recent Language in Multilaterals United State-Mexico-Canada Agreement (2018) (including Annex 14-B) Investment and Environmental, Health, Safety and other Regulatory Objectives 1. Nothing in this Chapter shall be construed to prevent a party from adopting. maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental, health, safety, or other regulatory objectives. 2. Non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriations, except in rare circumstances Comprehensive and Progressive Agreement for Trans-Pacific Partnership (2018) (including Annex 9-B) Investment and Environmental, Health and other Regulatory Objectives 1. Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measures otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental, health or other regulatory objectives 2. Non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriations, except in rare circumstances Move Away from Disciplines CETA (2016), Article 8.9(1)-(2): Investment And Regulatory Measures - For the purpose of this Chapter, the Parties reaffirm their right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, safety, the environment or public morals, social or consumer protection or the promotion and protection of cultural diversity. - For greater certainty, the mere fact that a Party regulates, including through a modification to its laws, in a manner which negatively affects an investment or interferes with an investor’s expectations, including its expectations of profits, does not amount to a breach of an obligation under this section New Standards Netherlands Model BIT (2019), Article 6(4), 12(8) [4] The Contracting Parties recognize that it is inappropriate to lower the levels of protection afforded by domestic environmental or labor laws in order to encourage investment. [8] Except in the rare circumstances when the impact of a measure or series of measures is so severe in light of its purpose that it appears manifestly excessive, non-discriminatory measures of a Contracting Party that are designed and applied in good faith to protect legitimate public interests, such as the protection of public health, safety, environment or public morals, social or consumer protection or promotion and protection of cultural diversity, do not constitute indirect expropriations New Carve Outs Israel-UAE BIT (2020) (including Annex A) [2] Subject to the requirements that such measure is not applied in an arbitrary or unjustifiable manner, and do not constitute a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Party from adopting, maintaining or enforcing measures, including environmental measures, that are necessary to: a) Protect human, animal or plant life or health. [4] For greater certainty, except in the rare circumstances when the impact of a measure or series of measures is so severe in light of its purpose that it appears manifestly excessive, nondiscriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriations.