Protecting the environment has never been more expensive: Is the invalidation of Shell's licences an expropriation under international investment law?

Abstract

In the realm of international investment law, states have historically faced challenges when implementing environmental protection measures that may negatively impact investors. A recent case illustrates this challenge: the 2022 dispute between South Africa and Shell over seismic testing. South Africa revoked Shell's licence due to environmental concerns, potentially setting the stage for an investor-state dispute settlement claim. This paper underscores the need for a shift in international investment law to accommodate environmental law obligations, acknowledging states’ right to regulate in the public interest. Ultimately, it aims to shed light on how international investment law can evolve to align with environmental goals and prevent states from bearing undue financial burdens for pursuing climate action.