Abstract:

Background & Aims: Global biodiversity loss and ecosystem degradation are threatening human survival and development. International conventions, such as the Convention on the Conservation of Migratory Species of Wild Animals and the Convention on Biological Diversity, emphasize contracting states should fulfill their obligations of in-situ conservation. Some States implemented conservation measures such as revoking/refusing mining permits and enacting/modifying biodiversity policies for this purpose. However, these measures cause damage to property rights protection and interests of some foreign investors. This violation of investment protection obligations promised by international agreements with foreign countries has caused many disputes. 

Review Results: Our paper reviews the disputes in jurisdiction, fair and equitable treatment clause, indirect expropriation clause, and other aspects of investment arbitration cases involving the governance of natural protected areas from the perspective of international investment. We find the difficulties in fulfilling the obligation of in-situ conservation and investment protection simultaneously as follows: divergence of the interpretation of reasonable expectations; differences of public interest review standards; difficulty in application of the general exception clause. 

Recommendations: Our findings suggest a need for clarifying the effectiveness levels of in-situ conservation rules and investment protection rules. Further, we recommend introducing the principle of good faith to improve investment treatment clauses, strengthening investor obligation provisions, and creating a global fund to combat biodiversity.

Key words: in-situ conservation, nature protected area, biodiversity, investment arbitration, principle of good faith, investor obligation