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Reconciling International Investment Law and Climate Change Policy: Potential Liability for Climate Measures Under the Trans-Pacific Partnership

July 2015

Citation: ELR 10683

Author: Meredith Wilensky

The pending Trans-Pacific Partnership (TPP) trade agreement has raised controversy, fueled by leaks of the draft text and congressional debate over fast-track negotiation authority. Like similar agreements, the TPP creates the risk of government liability for enacting regulations, especially new or comprehensive measures to address climate change. This Article analyzes how the TPP’s investor protection provisions and dispute settlement mechanism might be invoked to challenge climate change policy. The author concludes that the negotiators’ efforts to date are insufficient to protect climate measures from the risk of liability and suggests reforms to the draft text.

Meredith Wilensky is an associate attorney at Lozeau Drury LLP in Oakland, CA. She is a 2012 graduate of the University of California-Berkeley School of Law. This Article was originally written while she was the 2013-2014 Associate Director and Fellow at Columbia Law School's Sabin Center for Climate Change Law.

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