Author
Ms Yang Huiwen
Organisation/Institution
National University of Singapore, Faculty of Law
Country
SINGAPORE
Panel
Environmental Law
Title
Shield or Sword for Southeast Asia? The ICJ Advisory Opinion on Climate Change and the Reinterpretation of Fair and Equitable Treatment in Investment Disputes
Abstract
The International Court of Justice’s Advisory Opinion (AO) on Climate Change is anticipated to clarify the scope of states’ obligations to prevent, mitigate, and remedy climate-related harms under international law. For Southeast Asia, where states are intensifying climate action while maintaining substantial foreign investment in extractive and energy sectors, the AO may exert profound normative influence on the balance between environmental protection and investment protection. This paper examines whether the AO could operate as a shield or sword for Southeast Asian states in future investment disputes, particularly through its potential to reshape the interpretation of the Fair and Equitable Treatment (FET) standard. The FET clause has long served as the cornerstone of investor protection, yet its broad and evolving interpretation has also limited states’ regulatory autonomy in pursuing environmental goals. Drawing on emerging climate jurisprudence, the paper explores how the AO might inform arbitral reasoning by integrating principles of sustainable development, precaution, and intergenerational equity into the concept of “fairness.” Through a comparative doctrinal and socio-legal analysis of Indonesia, the Philippines, and Vietnam, the study assesses whether the AO can strengthen the legitimacy of pro-environmental regulatory change, thereby recalibrating the FET standard to accommodate contemporary climate imperatives. Ultimately, the paper argues that the AO could provide Southeast Asian states with a normative shield—empowering them to justify climate-oriented regulation—but might also serve as a sword, inviting new interpretive contestation in investment arbitration. The Advisory Opinion thus stands to redefine the contours of fairness, sovereignty, and sustainability in the region’s investment governance.
Biography
Yang Huiwen is a PhD Candidate in Law at the University of Geneva and a Research Associate at the Asia-Pacific Centre for Environmental Law (APCEL) of the National University of Singapore. She holds a Juris Doctor (with Distinction) from the National University of Singapore Faculty of Law and a master’s degree in international public policy (ranked first) from Peking University’s School of International Studies. Her research engages with climate change law and just transition. She has worked on climate-related trade and investment disputes, ITLOS and ICJ advisory opinions, and regional environmental governance. https://law.nus.edu.sg/apcel/people/yang-huiwen/
