Lee C. Rarrick


The following Article identifies the myriad ways in which international investment and free trade agreements interact with biodiversity. It categorizes these interactions into three main groups and provides a literature review of the various real-world and policy impacts. The first part analyses arbitration procedures in these agreements that investors and trade partners can invoke to protect their economic expectations from otherwise proper State action, including regulation that is intended to promote biodiversity. The next part evaluates biodiversity provisions that are included directly in the free trade and investment agreements themselves, or in side agreements thereto. Some of these provisions reference multilateral environmental treaties and attempt to provide stronger enforcement mechanisms for those obligations, while others create freestanding obligations between the contracting states and provide for dispute resolution procedures. The final part considers biodiversity as a form of intellectual property and a few of the various trade and investment agreements that regulate it as such. As the Article is not exhaustive of each interaction under every free trade or investment agreement, it is not possible to say empirically herein whether biodiversity is benefited or harmed on balance. But it is clear that over time these agreements are becoming more explicitly aware of their biodiversity impacts, and the contracting parties are striving for more of a balance between biodiversity protection and economic considerations. The Article is intended to provide insight into the wide range of biodiversity considerations that should be taken into account when drafting future free trade and investment agreements, as well as enforcing those currently in place. It is also intended to apprise environmental practitioners of the potential roadblocks and avenues that these agreements create.