Sustainability in the EU External Policy

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After the Lisbon Treaty, the external dimension of the European Union (EU)’s trade and investment policy has put an emphasis on sustainable development as one of the main strands of the external policy. This trend has consolidated over the past years through treaty-making and has been backed up by the CJEU. Considerable variations and nuances, however, are observed in the way in which sustainability is understood and embodied in the treaties entered into by the EU since then. In addition, these treaties feature innovative mechanisms for resolving disputes that possess the capacity to significantly influence the terrain of international dispute settlement by introducing arbitration and other alternative dispute resolution mechanisms.

As a turning point, the Advisory Opinion 2/2015 on the Free Trade Agreement between the European Union and the Republic of Singapore clarified the scope and nature of sustainable development chapters in the context of the trade and investment policy (in light of Article 218(11) TFEU and other relevant EU constitutional law provisions, such as Articles 3(5) and 21 TEU, and Articles 11 and 191 TFEU). Different agreements concluded in the post-Lisbon Treaty era embody these differential approaches to sustainability. In the environmental protection realm, agreements comprise a panoply of diverse provisions ranging from generic ones to more detailed and specific clauses regulating specific aspects.

This article aims to provide a critical analysis with a cutting-edge approach by examining the scope and effectiveness of the “green conditionality” (i.e. linking commercial objectives with political interests through the use of conditionality clauses) within the Sustainable Development Chapters of the Trade and Investment Agreements established by the EU. Specifically, the analysis will center around the environmental provisions incorporated in these agreements, assessing their role and effectiveness in promoting sustainable development objectives and examining the potential implications of dispute settlement and international arbitration mechanisms.
Original languageEnglish
JournalEuropean Investment Law and Arbitration Review
Publication statusAccepted for publication - 1 Sept 2023

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