An ISDS carve-out to support action on climate change /

The motivation behind the report is to support, and certainly not to undermine, a multilateral climate change agreement by drawing attention to the issue of an ISDS carve-out and suggesting detailed and strong language for a carve-out. [...] The suggested carve-out is as follows: “This Article applies to any measure adopted by a Party to this Agreement and relating to the objective of stabilizing greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system or relating to any of the principles or commitments contained in Articles 3 and 4 of the United Nations [...] To support its reliability, any disputes about the scope or application of the carve-out should be referred to a decision-making body that is established and acts under the auspices of the multilateral climate change agreement, not an ISDS treaty. [...] The carve-out from ISDS in a multilateral climate change agreement would need to be sufficiently specific in its prioritization of the carve-out over the Parties’ consents to ISDS in any future treaty allowing for ISDS. [...] For greater certainty, the carve-out also includes an obligation of each Party to reproduce the carve-out in any future ISDS treaty and a clarification that any future ISDS treaty among the Parties is presumed to include the carve-out.