Cracking a Sledgehammer with a Nut: Provisional Measures for the Climate Change Dilemma in Investor–State Dispute Settlement

Abstract

The intersection of international investment law and climate governance has created a structural challenge for investor–state dispute settlement (ISDS): how to balance regulatory autonomy, investor protection, and collective environmental interests. Existing approaches centred on systemic integration, proportionality, or treaty exceptions during the merits phase remain retrospective and insufficient to address the preventive and collective dimensions of climate change damage. This article proposes a procedural reorientation towards provisional measures as an under-explored yet doctrinally grounded mechanism for addressing climate-related investment disputes. Doctrinally, provisional measures, grounded in tribunals’ inherent powers, embody a preventive procedural logic that allows ISDS to temporarily accommodate community interests alongside investor and state rights. Without purporting to resolve the climate–investment law dilemma, or to displace substantive adjudication on expropriation or fair and equitable treatment, such measures operate within a bounded procedurally oriented space that weighs urgency and irreversibility. By contextually interpreting the established thresholds of prima facie jurisdiction, urgency, necessity, and rights preservation, tribunals can deploy provisional measures not as exceptional remedies, but as instruments of procedural balance in climate-sensitive adjudication. In doing so, this procedural framework enables ISDS to respond to the temporal and collective realities of climate governance while maintaining its consensual legitimacy.