Author
Ms Thao Phuong Trinh
Organisation/Institution
Diplomatic Academy of Vietnam
Country
VIETNAM
Panel
International Investment Law
Title
The ICJ’s Climate Change Advisory Opinion and the Future of FDI Protections in Developing Asia
Abstract
Compared to their European counterparts, Asian developing States have adopted a relatively liberal and facilitative legislative framework on foreign investment, prioritizing investment attraction over regulatory screening.1 This likely reflects both the need to draw inward capital and a reluctance to generate disputes arising from stricter regulations. Yet Asia is a disaster prone region where continued compromises on environmental protection are ultimately self-defeating. Against this context, the International Court of Justice’s Advisory Opinion on Obligations of States in respect of Climate Change marks a development in the understanding of State responsibilities under international law. It urges States to strengthen governance over private actors, particularly those involved in fossil-fuel production, and identifies two core customary rules essential to addressing climate change, a violation of which may constitute internationally wrongful acts. Read alongside investment treaties, the Opinion suggests that environmental measures which previously exposed host States to compensation may now be understood as internationally mandated obligations. This paper therefore explores how the Opinion can guide the future of FDI regulation in Asian developing States toward sustainable development. It first assesses the influence of advisory opinions on investment-arbitration outcomes by analyzing their authoritative character and their contribution to customary international law. Second, the paper revisits the interpretation of fair and equitable treatment, expropriation, police powers, and the evaluation of damage. In light of the Opinion, fossil-fuel investors may no longer claim surprise when States phase out coal in pursuit of climate obligations, climate measures would more readily fall within legitimate police powers, and tribunals may exercise greater caution in awarding damages that could discourage environmental regulation. The paper concludes by highlighting key implications for Asian developing States as they reform and strengthen their regulatory frameworks. 1. UNCTAD Report 2025
Biography
Thao P. Trinh currently serves as a Lecturer in Law at the Diplomatic Academy of Vietnam. Her research interests include international investment law, international commercial arbitration, and public international law. She holds an LL.M. in Comparative and International Dispute Settlement from Queen Mary University of London and an LL.B. from the Diplomatic Academy of Vietnam. She has also completed specialized courses on the settlement of international investment disputes and international commercial arbitration organized respectively by the Ministry of Justice and the Vietnam International Arbitration Center. Before joining DAV, Thao gained practical experience through internships at the Hong Kong International Arbitration Centre, Sidley Austin, and YKVN, where she worked as a trainee lawyer.
