Sustainability as a transboundary concept

In recent years, public grants aimed at achieving sustainable development goals have proliferated. Nevertheless, specific and isolated interventions, such as outright grants, often prove unsuitable for producing positive effects in the long term. At the same time, the holistic approach to sustainable development implies not only an integrated achievement of economic, environmental, and social goals but also a joint effort between public and private actors in pursuing these objectives. Starting from this assumption, the aim is to investigate the role of public guarantees for private investment aimed at promoting sustainable development on a national, European, and global scale. In particular, Multilateral Investment Guarantee Agency – MIGA‘s role to promote sustainable private sector foreign direct investment in developing countries will be compared with Italian “Cassa Depositi e Prestiti“ tasks as a Development Finance Institution, also in order to integrate the various interventions.

Up until now only few states have introduced enforceable rights to sustainability into their legal systems. Attempts to enforce sustainability, e.g. in the form of climate cases are therefore often endeavours with an uncertain outcome. In this paper, I will explore the strong and powerful position of courts in climate change jurisprudence. I will argue, that rather than implementing sustainability through courts, action of the legislator and the administration is needed. In that regard, the constitutionalisation of sustainability in recent years, resulting in constitutional principles guiding all three state powers, could provide legislators and administrations with the necessary mandate.

Under the pressures of environmental deterioration and climate change, States are implementing various policies in order to promote sustainability goals. This often implies restrictions on the scope of manoeuvring of private actors, sometimes resulting in losses of hoped for profits or outright economic damage. Over the last decades, international investment law has become a powerful tool in order to protect private investors against such moves on the part of their host states. This gives rise to the question whether the substantive guarantees and institutional arrangements of investment law are capable of accommodating for host states‘ legitimate sustainability concerns or whether a normative reorientation must take place in order to safeguard states‘ “right to regulate“ in view of the momentous environmental challenges the globe is facing.