The "unsustainable" clash between EU (and global) climate law and (old-style) international investment standards: Rockhopper v. Italy"

The relationship between international investment law and EU law is showing conflicts both of procedural and substantive nature. While procedural conflicts have been somehow framed by the Court of Justice of the EU as a threat to autonomy of EU law (according to the Achmea case-law), substantive clashes are not qualified as such. Indeed, international investment standards may interfere with the effectiveness of EU substantive law (such as state aid law) or impair the protection of general (non economic) interests pursued by EU legislation, such as typically those relating to the “green transition”. The Rockhopper v. Italy case provides a good example of the above mentioned situation. Purpose of the article is to provide a critical analysis of the core questions on the merits of the Rockhopper case, with a view to reflect more generally on the relationship between international investment law and EU (and global) climate law and policies. It is argued that cases like Rockhopper do not help the accommodation of conflicting interests in line with current global priorities and this may explain also the underlying rationale of the Achmea case-law. Some conclusions are then drawn on the differences between EU law and international investment law in dealing with public policy concerns and possible common challenges in addressing global priorities.