 Thank you. So thank you to Convenus for organizing this virtual conference and Dr. Bartels for the kind introduction My name is Godwin and I'll be presenting today with Andrea We'll be looking at addressing environmental risks to counterclaims in exit arbitration Before I begin just a small disclaimer the views we express here our personal views and not representative of the firms or universities With which we are affiliated. So to dive right in we'll be looking at two things today firstly We'll be looking at how environmental counterclaims have been used in recent cases to enforce environmental obligations and to manage Environmental risk and secondly we look at how new generation treaties particularly those that include provisions relating to environmental protection as well as semblance of progressive interpretation may assist environmental counterclaims in the future Just to give a bit of background traditional investment treaties do not have heavy emphasis on environmental considerations Most of them are intended to protect the foreign investors economic interests and because of that Usually what is typical is a list of treaty standards Imposing obligations on states and not as much obligations on investors the early exit decisions such as tankman in Mexico Santa Elena and Costa Rica Have been raised by commentators that those cases seem to place very little emphasis on the environmental dimension of the dispute rightly or wrongly However through our research in our paper we noticed that there is a shift a dramatic shift in the perception and treaty language And we attributed this in part to global awareness of the urgency of the climate crisis as well as an increased emphasis on sustainable developments We now turn to environmental counterclaims specifically in the context of exit First a counterclaim in an arbitration is a claim that's raised by a respondent in the same set of proceedings Against the claimant who brought the primary claim now article 46 of the exit convention is what governs the permissibility of a counterclaim This requires three things first that the counterclaim arises directly out of the subject matter of the dispute second that the counterclaim is within the scope of the consent of the parties and Third that the counterclaim is within the jurisdiction of the center However, the counterclaims remain a relatively recent development in investment treaty arbitration With only slightly over 10 reported investor state cases where counterclaims have been filed As such this area of environmental litigation still remains quite at its early stages We thus have two key exit environmental counterclaim cases I've put in the slide here Burlington and Ecuador and Parenco and Ecuador In both of these cases Burlington and Parenco relate to the same subject matter That is the exploration and exploitation of oil fields in the Amazonian rainforest where Significant ground water contamination and soil contamination was found now the dispute relates to a series of production sharing contracts for oil fields in blocks 7 and 21 of this rainforest and After a significant rise in oil prices where these production sharing contracts were for the exploitation of oil here Ecuador implemented a windfall tax on any extraordinary profits following April 2006 dispute arose in around late 2008 where this resulted in Ecuador terminating these contracts and Burlington and Parenco both initiating arbitration against Ecuador Now the decision eventually Came to pass that both Burlington and Parenco were found liable for these Environmental counterclaims with Burlington liable for up to 39.2 million dollars and Parenco liable for more than 93 million dollars Where it was found that there was ground water pollution and soil contamination among other issues in this area It might seem like there have been successes in environmental disputes But we do deal with certain main challenges and limitations that arise from relying on environmental counterclaims to mitigate environmental risk These are first that they are deferring views on whether a party can be said to have Consented to a counterclaim in arbitration and second most investment treaties do not impose obligations on the state and Do impose obligations on the state and not the investor and as such it might be difficult to Substantively ground a counterclaim and third environmental counterclaims require a lot of technical Substantiation of the claim through expert reports from the field So in approaching the analysis and the question of showing damages in a dispute Some level of expertise would be expected from both the tribunal and council on the case and last Counterclaims being reactionary in nature mean that they can only be brought in response to an arbitration that has first been commenced by the investor Well, there are these challenges We also track two developments that we think might to an extent overcome some of these challenges So one of which is new generation treaties. So by 2011 there were 133 investment treaties that expressly referred to environmental language either in a preamble or operative provisions Well, what is important to note is that early investment provisions relating to environmental Environmental protection were quite modest in their aim They only aim to reserve a state's right to implement certain measures whereas what we are seeing more recently are specific provisions Directly imposing environmental obligations on investors or human rights or corporate social responsibility obligations on investors that might entail environmental compliance and protection So one example of such provision is article 24 one of the 2016 Moroccan Nigerian bilateral investment treaty Which states that investors and their investments to strive to make the maximum feasible Contributions to the sustainable development of the whole state and local community through high levels of socially responsible practices Then we look at the more general provisions such as human rights provisions article 15 of the SADC model bilateral investment treaty States that investors and their investments have the duty to respect human rights and shall not breach human rights as for CSR One example will be article 10 3 of the 2016 Iran Slovakia bilateral investment treaty Which states that investors and investments should apply national and internationally accepted standards of corporate governance the synergies between on the one hand human rights and CSR and on the other hand environmental protection is Something that is well recognized amongst human rights institutions such as European Court of Human Rights as well as the inter-American Court of Human Rights And therefore it is arguable that those provisions when argued in a case might entail in the right circumstances environmental protection as well But there are challenges that come with these treaties firstly many of these treaties are silent on the issue of counterclaims and Secondly many treaties refer to sustainable development or environmental protection But only in the abstract and lastly the nature of a bilateral investment treaty is such that it affects two states and Investors of two states and therefore a handful of environmentally friendly investment treaties might not represent the entire field of international investment law So the second development we see happening is what we would call an increase in tribunal receptiveness towards environmental considerations As well as semblance of progressive interpretation. So in one of the cases that Andrew mentioned earlier, Peranko and Ecuador The interesting thing about this case is instead of predominantly focusing on the investors economic losses The tribunal started their analysis of the environmental counterclaims by emphasizing the proper Environmental stewardship and how important it is in today's world as well as the importance of a state having the right and white latitude Under international law to prescribe and adjust its environmental law standards and policies This is not unique only to cases directly involving environmental considerations We also see this in public health cases that are closely related to environmental compliance So one such example is Philip Morris and Uruguay So many of many of our attendees here would know this case Uruguay basically imposed certain measures to cup tobacco consumption And so in this case the tribunal emphasized that Responsibility for public health measures rests with the government and that investment tribunal should pay great deference The governmental judgments of national needs So on its face this kind of statements are not limited to public health But can also be applied to environmental compliance and protection So what are the implications? What are possible outcomes of this increase in receptiveness? We think it might be possible for tribunal to for instance interpret specific environmental provisions more broadly or Interpret general provisions that refer to human rights or CSR to include environmental compliance and protection Or draw guidance from environmental protections and norms when interpreting other treaty standards And lastly relying on the Vienna Convention to integrate international environmental obligations We explore this much further in our paper noting that there are controversies and limitations to all of this So in some we've looked at two recent cases where environmental counterclaims have succeeded We've looked at two developments which suggests that in the future there might be more Environmental counterclaims and environmental counterclaims might be easier to raise But at the same time we note that given that there's so few cases and these treaties are still very new It remains uncertain what the contours of substantive environmental obligations would be in the future as well as the role The environmental norms have to play in investment treaty arbitration. Thank you