Trade, international environmental law and sustainable development

IEL often interacts with the world trading system (the regime instituted through the WTO normative system), which covers, under the same institutional architecture, the pre-existing General Agreement on Tariffs and Trade (GATT) ‘disciplines’. Seemingly, these regimes are at odds as trade liberalisation may be in conflict with environmental protection measures that may restrict trade in certain goods. The adoption of certain international trade instruments has proven to be an uplift for environmental protection, such as the Doha Development Agenda.

The consideration given to environmental issues in the trade realm increased following the Rio Agreement 1992, which placed attention on the reconciliation of development and the environment, representing a turning point for this relationship and paving the way for a new era in the environment-trade debate.

This was also reflected during the Uruguay Round of negotiations (1986-1994) with the introduction of modifications to the Standards Code and the Technical Barriers to Trade (TBT) Agreement.11 Moreover, environmental protection has been addressed in other disciplines, such as the General Agreement on Trade in Services (GATS), the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS), the Agreement on Subsidies and Countervailing Measures (SCM) and the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS).[1] A quantum leap with regard to international trade and environment occurred with the adoption of the Marrakesh Agreement, establishing the WTO. Along with the addition of sustainable development to the Preamble, the Marrakesh Agreement instituted the CTE (a permanent WTO Committee operating in Trade and Environment). This Committee has been more prominent than its predecessor, the EMIT.

The interface between trade and environment also became the focus of the WTO adjudicating bodies, including both the panels and the AB. Overall, the WTO has developed a considerably jurisprudential approach in this regard compared to its predecessor under the GATT, which hardly addressed or invoked environmental principles.

a Compliance with international environmental law from the standpoint of international trade law and vice versa

Commentators argue that the WTO’s key principle of non-discrimination through seeking the efficient allocation of resources may have positive effects or externalities for the environment. Clearly, the attainment of sustainable development is one of the main objectives of the multilateral trading system, as

Intersections, interactions, and conflicts 123 stated in the Preamble to the Marrakesh Agreement, which also refers to the need to protect and preserve the environment.[2] Interpreting this interface as a mutually beneficial relationship between regimes responds to the logic of harmony in achieving sustainable development, which may be supported by some international trade law cases.

As background, the 1992 United Nations Conference on Environment and Development had already recognized the contribution the multilateral trading system could make to sustainable development. The emerging architecture resulting from the entry into force of the Marrakesh Agreement envisages sustainable development as a central principle. In turn, the Doha Development Agenda (DDA), a constituting element of the last trade round, focusses on the balanced achievement of development.

In terms of assessing the harmful effects to identify and understand the hidden risks of trade activities, environmental exceptions were already allowed under Article XX (b and g) of the GATT. Through the lenses of trade, broadly speaking, this article allows for compliance with environmental law (both international and domestic legal systems) to be invoked to justify some derogations under the international trade law regime. Conversely, compliance with international trade norms may pose challenges in terms of environmental governance; take, for instance, tensions encountered in international trade treaties negotiations between trade liberalisation and environmental protection. Within the WTO dispute settlement various environmental issues were discussed, such as policies aimed at reducing the consumption of cigarettes; the protection of dolphins; reduction of risks to human health posed by asbestos; and minimisation of risks to human, animal and plant life and health arising from the accumulation of re-treaded tyres (under Article XX(b)) as well as policies aimed at the conservation of tuna, salmon, herring, dolphins, turtles and clean air (under Article XX(g)).

Based on risk assessment, measures protecting the environment must be proportional and necessary; this requirement is also set out in the Sanitary and Phytosanitary Measures (SPS) Agreement and the Technical Barriers to Trade

(TBT) Agreement.[3] WTO dispute settlement bodies have taken a case-by-case approach, examining the fulfilment of the requirements of the chapeau, which are even more difficult to prove. In line with the chapeau, measures must not constitute a ‘means of arbitrary or unjustifiable discrimination’ or a ‘disguised restriction on international trade’. For these reasons, rules of the multilateral trading system may be seen as a stumbling block to compliance with IEL, and vice versa.

From the international trade law standpoint, several environmental goods and services have an economic value. Also, numerous environmental problems present uncertainties, and many environmental goods and services are considered public goods. In many cases, environmental goods and services cannot be priced in order to be considered under international trade rules, or their protection may clash with international trade law.

When faced with a controversy between these two fields of international law, the WTO dispute settlement bodies (panels and Appellate Body) have conducted a balancing test, weighing up the interests at stake. Wherever the environmental exception is invoked, both the panels and the Appellate Body perform a proportionality test. Environmental risk assessment processes in international trade law follow the precautionary principle. The test also involves environmental cost-benefit analysis (CBA) which is applied to policies aiming to improve environmental protection or to actions that have an impact on the natural environment as an indirect consequence.

Trade-related measures are also frequent in MEAs, such as in the 1973 Convention on Trade in Endangered Species (CITES). Ensuring compliance through trade restrictions to protect the environment is often used as a tool in other international environmental treaties, such as the 1987 Protocol for the Protection of the Ozone Layer, or under those treaties relating to the transboundary movement of hazardous waste regime, such as the 1989 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and the 2001 Rotterdam Convention on the Prior Informed Consent Procedure

Intersections, interactions, and conflicts 125 for Certain Hazardous Chemicals and Pesticides in International Trade.[4] In addition, CITES uses trade criteria to determine the level of protection. Space precludes a more detailed analysis of other cases, but these examples seem to demonstrate a positive interaction and mutual support between the regimes with environmental protection as a combined effect of these tools.

b Environmental compliance in international trade law jurisprudence

The jurisprudence of the WTO dispute settlement system offers some interesting elements for the discussion on the relationship between trade liberalisation and the protection of the environment. Extra-territorial effects of environmental regulations were at issue in some of the highly debated trade controversies, such as Shrimp-Turtle^ and Tuna flsh-Dolphin?* In the Re-treaded tyres case, although they did not include any specific reference to sustainable development, Brazil contended that these decisions recognized that the importation of used tyres entailed environmental risks.

The environmental exception in the world trading system provided for in Article XX of the GATT in three different types (recitals a, b and g) has been often invoked in cases brought before WTO dispute settlement mechanisms, presenting an evolution in terms of compliance or clashes between the different regimes. In various cases before the WTO panels, parties have invoked the environmental exception in the relationship between developing and developed countries, as in the retreaded tyres cases. In the notorious Shrimp/Turtles case the environmental protection was recognised as a possible exception to

trade, although the Apellate Body declared that the measure in question was not covered by it because it was arbitrary and discriminatory.

When it came to the protection of animal welfare (broadly considered part of environmental law), the WTO has generated more controversy as seen in the EC-Seal Products case.38 The EU argued the case under the moral exception in favour of animal welfare, indicating that EU citizens were concerned with the welfare aspects of seal hunting and the marketing of the products, thus banning trade in seal products but contemplating some exceptions.39 The regulation at issue, Regulation (EC) No 1007/2009 on trade in seal products, failed to comply with the test under the chapeau in this case.

To reinforce environmental protection in the international trade regime during the litigation before the WTO dispute settlement body, non-state actors and third States have been offered the possibility to submit amicus curiae briefs, as happened in the controversy surrounding re-treaded tyres.40


United States — Import Prohibition of Certain Shrimp and Shrimp Products

WTO case Nos. 58 (and 61). Ruling adopted on 6 November 1999

  • 185. In reaching these conclusions, we wish to underscore what we have not decided in this appeal. We have not decided that the protection and preservation of the environment is of no significance to the Members of the WTO. Clearly, it is. We have not decided that the sovereign nations that are Members of the WTO cannot adopt effective measures to protect endangered species, such as sea turtles. Clearly, they can and should. And we have not decided that sovereign states should not act together bilaterally, plurilaterally or multilaterally, either within the WTO or in other international fora, to protect endangered species or to otherwise protect the environment. Clearly, they should and do.41
  • 38 WTO Dispute Settlement. DS400: European Communities — Measures Prohibiting the Importation and Marketing of Seal Products» available at dispu_e/cases_e/ds400_e.htm accessed 1 April 2020.
  • 39 Lukasz Adam Gruszczynski, “EC - Seal Products Case: Public Morality Meets the World Trade Court” (2014) 3(1-2) Polish Review of International and European Law, pp. 101-119, available at accessed 1 April 2020.
  • 40 Various NGOs acted as Third Participants in the proceedings: Associa^ao de Combate aos Pol-uentes (ACPO), Brazil; Associa^ao de Prote<;ao ao Meio Ambiente de Cianorte (APROMAC), Brazil; Centro de Derechos Humanos y Ambiente (CEDHA), Argentina; Center for International Environmental Law (CIEL), United States and Switzerland; Conectas Direitos Humanos, Brazil; Friends of the Earth Europe, Belgium; The German NGO Forum on Environment and Development, Germany; Justi^a Global, Brazil; and Institute O Direito por Um Planeta Verde, Brazil.
  • 41 United States—Import Prohibition of Certain Shrimp and Shrimp Products. WTO case Nos. 58 (and 61). Ruling adopted on 6 November 1998.

WTO - Dispute Settlement - DS135: European Communities -Measures Affecting Asbestos and Products Containing Asbestos

Despite finding a violation of Article III, the Panel ruled in favour of the European Communities. Under Article III (which requires countries to grant equivalent treatment to like products) the Panel found that the EC ban constituted a violation since asbestos and asbestos substitutes had to be considered “like products” within the meaning of that Article. The panel argued that health risks associated with asbestos were not a relevant factor in the consideration of product likeness. However, the Panel found that the French ban could be justified under Article XX (b). In other words, the measure could be regarded as one which was “necessary to protect animal, human, plant life or health.” It also met the conditions of the chapeau of Article XX. It therefore ruled in favour of the European Communities.

Dispute Settlement - DS332: Brazil — Measures Affecting Imports of Re-treaded Tyres

On 3 December 2007, the Appellate Body report was circulated to Members. The Appellate Body: upheld the Panel’s finding that the import ban can be considered “necessary” within the meaning of Article XX(b) and is thus provisionally justified under that provision and found that the Panel did not breach its duty under Article 11 of the DSU to make an objective assessment of the facts.

  • (...) reversed the Panel’s findings that the MERCOSUR exemption would result in the import ban being applied in a manner that constitutes unjustifiable discrimination and a disguised restriction on international trade only to the extent that it results in volumes of imports of retreaded tyres that would significantly undermine the achievement of the objective of the import ban; reversed the Panel’s findings that the MERCOSUR exemption has not resulted in arbitrary discrimination and that the MERCOSUR exemption has not resulted in unjustifiable discrimination; and found instead that the MERCOSUR exemption has resulted in the import ban being applied in a manner that constitutes arbitrary or unjustifiable discrimination within the meaning of the chapeau of Article XX; reversed the Panel’s findings that the imports of used tyres under court injunctions have resulted in the import ban being applied in a manner that constitutes unjustifiable discrimination and a disguised restriction on international trade only to the extent that such imports have taken place in volumes that significantly undermine the achievement of the objective of the import ban; and found instead that the imports of used tyres under court injunctions have resulted in the import ban being applied in a manner that constitutes arbitrary or unjustifiable discrimination within the meaning
  • (Continued)

of the chapeau of Article XX; and AB Award - WT/DS332/AB/R (...) with respect to Article XX of the GATT 1994, the Appellate Body upheld, albeit for different reasons, the Panel’s findings that the import ban is not justified under Article XX of the GATT 1994.

  • 1 The Necessity Analysis
  • 9. The European Communities claims that the Panel erred in finding that the import prohibition on retreaded tyres imposed by Brazil (the “Import Ban”) was necessary to protect human, animal, or plant life or health, within the meaning of Article XX(b) of the GATT 1994. The European Communities requests the Appellate Body to reverse this finding and to find, instead, that the Import Ban is not “necessary” within the meaning of Article XX(b).

B Arguments of Brazil - Appellee

1 The Necessity Analysis

Para 52. Brazil maintains that the Panel properly found that the Import Ban was “necessary” to protect human, animal, or plant life or health within the meaning of Article XX(b) of the GATT 1994, and therefore requests the Appellate Body to uphold this finding.

a The Contribution Analysis

Para 53. First, Brazil argues that the Panel correctly assessed the contribution made by the Import Ban to the achievement of its objective. The paragraphs set out in Article XX focus on the measure, as such, while the chapeau focuses also on the application of the measure. Therefore, actual contribution is not relevant to the analysis under paragraph (b) of Article XX, and the Panel applied the correct legal standard in using phrases such as “can contribute” and “capable of contributing”. Such a standard is also particularly appropriate given that some measures—for example, environmental measures—may not have immediate effect. The Panel’s approach was in line with “virtually all” other cases that have examined a measure’s contribution under paragraphs (b) and (d) of Article XX of the GATT 1994 or under Article XIV of the General Agreement on Trade in Services (the “GATS”). This is the case whether the risk sought to be avoided is direct or indirect. Brazil adds that the need to undertake the weighing and balancing exercise also illustrates that the European Communities cannot be correct. If a panel were required to assess the extent of a measure’s actual contribution, it would have to do the same for alternative measures in order to compare them. Yet, this is impossible, because an alternative measure is one that has not yet been realized. That the Panel was not, as the European Communities claims, required to quantify the Import Ban’s contribution to reducing waste tyre volumes is confirmed in the Appellate Body Report in EC - Asbestos, where the Appellate Body held that “a risk may be evaluated either in quantitative or qualitative terms”. Brazil also expresses its understanding that, according to existing case law, if the measure can make a contribution to its objective, and no reasonably available alternatives exist, then the measure is “necessary”.

Para 65 (...) “Brazil rejects as a ‘blatant misrepresentation’ the European Communities’ argument that the Panel’s finding necessarily implies that mere compliance with any international agreement would exclude the existence of arbitrary discrimination, particularly given that the Panel expressly stated that its finding was limited to the “specific circumstances of the case”. Furthermore, the European Communities’ systemic concerns in this respect are contrary to the well-established precept under general international law that “bad faith on the part of States is not to be presumed”, and it is “absurd” to suggest that a WTO Member would conclude an agreement under Article XXIV for purposes of circumventing the requirements of the chapeau of Article XX.

Para 78. Brazil contends that the European Communities has failed to rebut Brazil’s prima facie demonstration that MERCOSUR is consistent with the requirements of Article XXIV: 5 and 8. The fact that the CRTA and the Committee on Trade and Development did not reach the conclusion that MERCOSUR is in compliance with Article XXIV does not suggest that MERCOSUR is inconsistent with Article XXIV, in particular, because Members’ measures are presumed WTO-consistent until sufficient evidence is presented to prove the contrary, and because the CRTA has only once concluded that a regional trade agreement was compatible with the GATT 1994’.

Source: WTO


It has long been argued that I IL will bring in the risk of a ‘regulatory chill’, which may lead governments to waive the adoption of legitimate regulatory measures for the environment, health or natural resources. In terms of compliance, this represents a ‘balancing exercise’; States should also address the perceived threat that investment protection agreements will hinder the safeguard of the environment and their powers to adopt, maintain or enforce any measure they consider appropriate to ensure that investments are compatible with environmental concerns.

Scholars have referred to the interference of foreign investors that may circumvent controls and end up reducing the margin of manoeuvre of the host State as an ‘expropriation of environmental governance’.[5] A long-standing idea is that, in a globalised world, multinational companies may exploit natural resources in other (less-developed) States, even being considered as ‘global corporate predators’. These tensions between IIL and IEL are embodied in concepts such as ‘regulatory chill’ and ‘pollution havens’ (investors from developed States vis-à-vis developing host-States).

Regulatory chill is a term that has been used in the relevant literature, even though its exact meaning is difficult to grasp. In this light, investment arbitration would represent a threat or a restriction to governments and their capability to freely operate in the policy space. According to the regulatory chill theory, case law would demonstrate that investment arbitration hampers the government’s right to regulate, leading to a risk of‘regulatory chill’. Environmental protection can be relaxed in many states to achieve other advantages. The concept of ‘pollution havens’ is not free from controversy. It has been defined as a situation in which any State with less strict environmental standards attracts more investments, creating a ‘pollution haven’. But this definition ‘would be misleading because countries cannot, in general, be expected to have the same environmental standards all over the world—regardless of whether they want to attract foreign capital’.

Nevertheless, globalisation may have some positive impacts on environmental policy, such as convergence of good practices; an increased coordinated action to address international environmental problems under multilateral environmental agreements; and enhanced interactions between civil society groups, which can communicate and co-operate with each other to exert pressure on policymakers and business groups.[6]

To offset possible environmentally harmful effects, international investment agreements (IIAs) include provisions on the right to regulate and references to MEAs to ensure that environmental standards do not fade away. Public welfare objectives are often included in different model BITs (such as the US Model BIT). The ‘right to regulate’ alludes to a State’s sovereign power, under international and domestic law, to enact domestic legislation and adopt measures necessary to protect the public interest within its jurisdiction.

The right to regulate ties in with the doctrine of police powers, according to which, host States may adopt legitimate regulatory measures affecting foreign investors that under certain conditions would not amount to an illegal taking of property. In a strict interpretation, the ‘right to regulate’ would prevent investment arbitration claims from affecting state sovereignty. International arbitration shows a three-step ‘test’ used to determine the legality of the right to regulate which comprises three elements that must be present: the existence of public interest, proportionality of the measure and degree of interference with property rights.

This test is often performed in cases dealing with the environmental consequences of large-scale resource exploitation involving public interest. Several cases have sparked criticism against international arbitration, particularly those brought before the International Centre for the Settlement of Investment Disputes (ICSID) and other Investor-to-State Dispute Settlement (ISDS) fora comprising public interest and environmental protection. The notion of public interest stems from different sources and varies from case to case.

Case law arising under the North America Free Trade Agreement (NAFTA) also involved compliance with environmental law obligations. In Teemed v

Mexico environmental considerations were part of the arguments invoked by the parties to the controversy: Teemed argued that the Environmental Protection Agency’s decision to refuse renewal of the permit mandating the closure of the landfill amounted to an indirect expropriation of Tecmed’s investment.[7]

As the NAFTA tribunal asserted in Methanex

non-discriminatory regulation for a public purpose, which is enacted in accordance with due process and, which affects, inter alios, a foreign investor or investment is not deemed expropriatory and compensable unless specific commitments had been given by the regulating government to the then putative foreign investor.53

This, in particular, is controversial since otherwise these measures would constitute expropriation in the different variations. It has still not been settled how arbitral tribunals address regulatory interference on environmental grounds. While the Methanex case has had far-reaching implications, looking at the NAFTA case law as a whole, there are several cases in which expropriation was determined by the arbitral tribunals. The bottom line is that there is no clearcut, ‘a priori’ solution. For instance, a pending case before a NAFTA tribunal (the Lone Pine arbitration) deals with the revocation of the company’s right to mine for oil and gas under the St Laurence River, affected by the Government of Quebec’s fracking moratorium. In the company’s view, this revocation was ‘arbitrary, capricious, and illegal (...) without due process, without compensation, and with no recognizable public purpose’.

Another aspect concerns procedural transparency and right to information in environmental matters. Procedural transparency is crucial in informing the

Intersections, interactions, and conflicts 133 public if a dispute concerning public interests exists and its content (allegations, state’s wrongdoings, affected interests, etc.).[8] At the international level, the right to access to information in environmental matters has been recognised in Principle 10 of the Rio Declaration on Environment and Development, which affirms that every individual must have access to information, the opportunity to participate in decision-making and access to redress and remedy. The principle encompasses the action plan under the Declaration that underlines the need for access to information on an international level to achieve sustainable development.

In Europe, the right has been further developed by the Aarhus Convention (on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters), in force since 2001. Freedom of information as a human right is embodied in different international instruments, such as Article 10 of the European Convention on Human Rights. The ECHR has given rise to an interesting case law on access to information based on compliance with Articles 6, 8 and 10: López Ostra v Spain (1994), Guerra v Italy (1998), Fadeyeva v Russia (2005) and Hardy v UK (2012). Also, specifically concerning foreign investment, in Reyes v. Chile before the Inter-American Court of Human Rights, the petitioners alleged that the State had violated the principle of free access to state-held information when the Chilean Committee on Foreign Investment failed to release information about a deforestation project the petitioners wanted to evaluate. The I. A. Court upheld the claim on the basis of Article 13 of the American Convention on Human Rights, which embodies the right to ‘seek, receive and impart’ information as ‘a requisite for the very exercise of democracy’.

While it is out of question that investment agreements may give rise to environmental and sustainable development issues, the emergence of an autonomous right to transparency in international investment law is still questionable. The

ultimate power to determine whether documents are made public is in the hands of the arbitral tribunal and the parties.

Over the past ten years, there has been deep concern about procedural transparency and accommodating public interest in investment-State arbitration. Consequently, transparency rules have been adopted in ISDS. Provisions range from publishing certain documents relating to the arbitration procedure to allowing amicus curiae submissions. The 2006 ICSID arbitration rules contain a specific provision regarding amicus curiae briefs,[9] legally recognizing the right to make such submissions, apart from specific information that should be disclosed.

Previous ICSID case law provides good ground for reflection on the relationships between environmental protection and international investment law. In Bi-water Gauff v. Tanzania and Vivendi v. Argentina, the arbitral tribunal just transcribed parts of the amicus curiae submission. The possibility to submit amicus curiae briefs does not imply the petitioners’ right to access to documents submitted by either party. ICSID tribunals have reacted in similar ways in this regard. In Biwater Gauff v. Tanzania, the tribunal did not grant the petitioner’s request to access additional information, including documents containing the claims of the parties. Two main reasons were put forward by the tribunal. First, it did not authorize the disclosure of information, based on a strict interpretation of ICSID rules. Second, it rejected the petition, arguing that the dispute was a ‘very public and widely reported dispute’ and that the information that gave rise to the amici’s request to intervene was sufficient to make further submissions. In a similar vein, the arbitral tribunal in Suez Vivendi granted permission to file an amicus curiae brief but denied access to the parties’ submissions.

In order to address these issues, international investment agreements include more sophisticated provisions (not to lower environmental standards, to adhere to specific MEAs and to reinforce international cooperation in environmental matters) with a separate dispute settlement procedure or chapter to deal with environmental issues. Public interest litigation and the right to regulate for environmental reasons continue to develop case law and jurisprudential rules addressing conflicts between these two diverse areas of law. An emerging law-making and case law has resulted from Bilateral Investment Agreements to megaregional and multilateral agreements.


A Introduction

  • 34. Ecuador presented the environmental counterclaim on the basis that its experts had determined the existence of an “environmental catastrophe” in the two oil blocks situated in the country’s Amazonian rainforest that had been worked by the consortium under Perenco’s operatorship. Ecuador viewed this as an extremely serious matter deserving the most careful consideration by the Tribunal. On this point, the Tribunal cannot but agree. Proper environmental stewardship has assumed great importance in today’s world. The Tribunal agrees that if a legal relationship between an investor and the State permits the filing of a claim by the State for environmental damage caused by the investor’s activities and such a claim is substantiated, the State is entitled to full reparation in accordance with the requirements of the applicable law.
  • 35. The Tribunal further recognises that a State has wide latitude under international law to prescribe and adjust its environmental laws, standards and policies in response to changing views and a deeper understanding of the risks posed by various activities, including those of extractive industries such as oilfields. All of this is beyond any serious dispute and the Tribunal enters into this phase of the proceeding mindful of the fundamental imperatives of the protection of the environment in Ecuador.
  • (•••)

Conclusion on Perenco’s Environmental Management Practices in Blocks 7 and 21

447. In sum, the Tribunal considers that Perenco’s claims of strong environmental law compliance are not made out. While the Tribunal is not prepared to find that Perenco consistently sought to conceal instances of contamination, there is some evidence that it was less than forthcoming in some instances. The 2010 memorandum’s comment on the Payamino 2-8 contamination that the “State will probably assume that we are hiding many more [environmental] damages and will scrutinize the operations area in search for more damages and it will probably find them” is very troubling. This evidence, combined with the company’s failure to document the environmental condition of the two Blocks at the time of the acquisition of its interests, its failure to conduct the statutorily required audits in 2004, its use of outdated environmental documents during the


course of the operations, its failure to obtain necessary licenses, the increase in the incidence of nonconformities detected in the 2006 and 2008 audits, and Mr. Puente’s unchallenged testimony as to the approach taken in the 2008 Block 7 audit do not paint a picture of a responsible environmental steward.


  • [1] WTO, Sustainable Development, available at sust_dev_e.htm accessed 1 April 2020). 2 WTO, “Early Years: Emerging Environment Debate in G ATT/WTO”( World Trade Organization 2019), available at accessed 1 March 2020; Will Martin and L. Alan Winters, The Uruguay Round Widening and Deepening the World Trading System (The World Bank 1995) p. 2. 3 Agreement Establishing the World Trade Organization 1994; Charnovitz (n 10) at 685-706. 4 Agreement Establishing the World Trade Organization 1994, Preamble; Richard Baron and Justine Garrett, ’Trade and Environment Interactions: Governance Issues’ OECD Background paper for the 35th Round Table on Sustainable Development 2017, available at http://www.oecd. org/sd-roundtable/papersandpublications/Trade%20and%20Environment%20Interactions%20 FINAL.pdf accessed 1 March 2020. 5 MC, Marrakesh Ministerial Decision on Trade and Environment, MTN. TNC/45 (MIN) (14 April 1994); Dominic Gentile, “International Trade and the Environment: What Is the Role of the WTO?” (2009) 19(1) FELW, pp. 195-230; WTO, ‘The Committee on Trade and Environment’ (World Trade Organization 2019), available at envir_e/wrk_committee_e.htm accessed 1 March 2020. 6 Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) 1995, Article 17; WTO Secretariat, A Handbook on the WTO Dispute Settlement System (CUP 2004), pp. 12-16. 7 Michael M. Weinstein and Steve Charnovitz, ’The Greening of the WTO’ (2001) 80(6) Foreign Affairs, pp. 147-156.
  • [2] World Trade Organisation, Sustainable Development, available at accessed 1 April 2020. 2 Pierre-Marie Dupuy and J. Vinuales, International Environmental Law (CUP 2015), pp. 394-395. 3 WTO, Sustainable Development, available at sust_dev_e.htm accessed 1 March 2020. 4 1994 Marrakesh Agreement Establishing the World Trade Organisation. Done at Marrakesh on 15 April 1994. Entry into force: 1 January 1995, available at docs_e/legal_e/04-wto_e.htm accessed 1 April 2020. 5 WTO, Subjects Treated under the Doha Development Agenda, available at english/tratop_e/dda_e/dohasubjects_e.htm accessed 1 April 2020. 6 GATT, Article XX. 7 The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS ïgree-ment) was adopted during the 1986-94 Uruguay Round and entered into force with the establishment of the World Trade Organization on 1 January 1995. WTO, ‘Understanding the WTO Agreement on Sanitary and Phytosanitary Measures’, available at english/tratop_e/sps_e/spsund_e.htm accessed 1 April 2020.
  • [3] Technical Barriers to Trade (TBT) Agreement was also adopted during the 1986-94 Uruguay Round, available at Technical%20Barriers%20to%20Trade,create%20unnecessary%20obstacles%20to%20trade accessed 1 April 2020. 2 Lorand Bartels, ‘The Chapeau of the General Exceptions in the WTO GATT and GATS Agreements: A Reconstruction’ (2015) 109 American Journal of International Law, p. 95, available at SSRN: or accessed 1 April 2020. 3 Markus W. Gehring and Marie-Claire Cordonier Segger, Precaution in World Trade Law: The Precautionary Principle and Its Implications for the World Trade Organization (CISDL 2002), available at accessed 1 April 2020. 4 OECD, Cost-Benefit Analysis and the Environment: Further Developments and Policy Use, OECD Publishing, (2018 Paris), available at 5 CITES, Appendices I, II and III. CITES, Howe CITES Works, available at https://www.cites. org/eng/disc/how.php accessed 1 April 2020.
  • [4] The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted on 22 March 1989, available at accessed 1 April 2020. 2 The Conference of the Parties (CoP), which is the supreme decision-making body of the Convention and comprises all its Parties, has agreed in Resolution Conf. 9.24 (Rev. CoP17) on a set of biological and trade criteria to help determine whether a species should be included in Appendices. 3 Riccardo Pavoni, ‘Mutual Supportiveness as a Principle of Interpretation and Law-Making: A Watershed for the ‘WTO-and-Competing-Regimes’ Debate?’ (2010) 3 European Journal of International Law, pp. 649, 654-655. 4 United States—Import Prohibition of Certain Shrimp and Shrimp Products- WTO case Nos. 58 (and 61). Ruling adopted on 6 November 1998. 5 United States—Restrictions on Imports of Tuna, the ‘tuna-dolphin’ case, ruling not adopted, circulated on 3 September 1991. Case brought by Mexico et al. United States—Restrictions on Imports of Tuna, “son of tuna-dolphin”, ruling not adopted, circulated on 16 June 1994. 6 WTO, DS332: Brazil-Measures Affecting Imports of Retreaded Tyres, available at https://www. accessed 1 April 2020. 7 John Carter Morgan III, ‘Fragmentation of International Environmental Law and the Synergy: A Problem and a 21st Century Model Solution’ (2017) 18 Vermont Journal of Environmental Law, p. 133. 8 Dispute Settlement: Dispute DS332. Brazil - Measures Affecting Imports of Retreaded Tyres, available at accessed 10 January 2015.
  • [5] K. Tienhaara, The Expropriation of Environmental Governance (Cambridge University Press 2009). 2 D.R. Loritz, ‘Corporate Predators Attack Environmental Regulations: It’s Time to Arbitrate Claims Filed under NAFTA’s Chapter 11’ (2000) 533 Loyola Los Angeles International & Comparative Law Review, p. 533. 3 K. Tienhaara, ‘Regulatory Chill and the Threat of Arbitration: A View from Political Science (October 28, 2010)’, in Chester Brown and Kate Miles (eds), Evolution in Investment Treaty Law and Arbitration (Cambridge University Press 2011), available at SSRN: abstract=2065706 accessed 1 April 2020. 4 E. Neumayer, ‘Pollution Havens: An Analysis of Policy Options for Dealing with an Elusive Phenomenon’ (2001) 10(2) Journal of Environment & Development, pp. 147-177. 5 See Bradley J. Condon and T. Sinha, The Role of Climate Change in Global Economic Governance (OUP 2013); Tim Stephens, International Courts and Environmental Protection (CUP 2009); Sophie Thoyer and Benoit Martimort-Asso, Participation for Sustainability in Trade (Ashgate -Global Environmental Governance Series 2007); Timothy Swanson and Sam Johnston, Global Environmental Problems and International Environmental Agreements-The Economics of International Institution Building (Edward Elgar 1999) and Jochem Wiers, Trade and Environment in the EC and the WTO (Europa Law Publishing 2003).
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