Trade Law and Climate Change

Contents

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    Executive summary

    Trade liberalisation and climate change regulation can complement one another in several ways.[1] First, lowering trade barriers can enhance competition, leading to higher resource efficiency, environmental benefits and consequent advantages for the net zero transition. Second, free trade can lead to the dissemination of good environmental practice and the transfer of cleaner technology from countries with high environmental standards to their trading partners. Finally, there is a longstanding trend that higher standards of income correlate with higher standards of environmental protection. Therefore, while impoverished areas may come under pressure to exploit their environments to become more economically viable, in time, increased income may result in enhanced environmental standards and benefit the net zero transition. Trade liberalisation can also negatively impact the net zero transition both directly and indirectly. Trade rules can directly prevent governments from tackling climate change by prioritising trade interests over climate concerns. Indirect effects may include pollution safe havens and races to the bottom resulting from trade liberalisation which may result in increased greenhouse gas emissions. However, upward harmonisation of environmental standards may be more likely than downward harmonisation. Current and future legal frameworks aim to balance these risks and opportunities associated with trade and climate change.

    Key points in this section:

    • Physical, economic and political impacts from climate change are influencing trade patterns. The risk that policies aimed at reducing domestic emissions will result in shifting emissive industries abroad, called ‘carbon leakage’, is a common concern though UK legislation may not have actually increased carbon leakage and consumption-based emissions continue to decrease.
    • Trade negotiations can also enhance climate cooperation, with the scale and ambition of climate provisions in free trade agreements increasing. This is notable in the Trade and Cooperation Agreement (TCA) signed between the EU and UK, which lists climate change and Paris Agreement obligations as an essential element of the treaty.
    • To ensure that imports pay the same carbon price as domestic goods, the EU is seeking to introduce a ‘Carbon Border Adjustment Mechanism’ which would place a tariff based on the embedded carbon in goods, a measure that the UK is now also considering. These mechanisms may face challenges under international trade rules depending on their design.
    • Environmental tariffs, subsidies, and other measures that may distort trade could breach World Trade Organization (WTO) rules. The WTO has tended to interpret exceptions in the General Agreement on Tariffs and Trade more broadly over time to reduce legal barriers to environmental measures.
    • Nationally Determined Contributions, countries’ individual commitments to reducing emissions under the Paris Agreement, may begin to be implemented in trade agreements, which could create enforcement mechanisms that are not available under the Paris Agreement itself.
    Key Legislation and AgreementsKey Cases
    General Agreement on Tariffs and Trade  

    EU-UK Trade and Cooperation Agreement
    Tuna-Dolphin I and II

    US-Shrimp

    SD Myers v Canada

    How climate-related legal risks are impacting trade actors

    General impacts

    Climate change can negatively affect trade patterns ranging from extreme weather events increasing the cost of trade by destroying or degrading transport infrastructure and reducing agricultural production, to reduced food availability, to difficulties experienced by economies which are highly reliant on high-carbon exports including steel and cement.[2] Agricultural trade is likely to be most acutely affected by climate change owing to the sensitivity of agricultural activities to climate and weather patterns.[3]

    There has been a push for the UK to champion leadership in both climate change mitigation and trade liberalisation. Although the UK’s climate policies are often ranked amongst the world’s best, reports indicate that the country is not on track to meet its climate ambitions.[4] To meet these targets, the UK may implement internal disciplines and transparent subsidy frameworks,[5] which are likely to affect trade actors. Furthermore, 2022 reports showed that 46 percent of the UK’s total emissions result from imported goods for consumption but are not counted towards the UK’s climate commitments or net zero targets.[6] The UK Climate Change Act does not include trade-related emissions[7], though emissions in the UK have decreased even accounting for trade so the perception that the country is simply offshoring all of its emissions is not necessarily accurate.

    As society transitions to net zero, it will also be essential that there is access to environmental goods and services and here trade will play an essential role. In the absence of a just transition to net zero, trade actors and/or the UK Government may face legal challenges as illustrated by Company Workers Union of Maritima & Commercial Somarco Limited v Ministry of Energy (2021) before the Chilean Supreme Court. Here Chile was required to provide a just transition strategy in achieving net zero taking into consideration the livelihoods of those losing employment as a result.[8]

    Competitiveness

    A concern for industry actors as climate change awareness grows and climate policy ambitions increase is that the UK will become less competitive leading to losses of jobs and market share, or carbon leakage.[9] Some industry concerns relate to the impact of trade tariff barriers on green goods and the need for greater consistency with carbon-based trade policies. Exporters have raised concerns regarding trade friction from the use of trade remedies and other unilateral trade actions on global supply chains. To mitigate such concerns, policymakers have devised several strategies, including the introduction of financial compensation, targeted policy exemptions and carbon border adjustments (discussed below).[10] Notably empirical evidence reveals that domestic climate legislation has not increased carbon leakage.[11]

    Trade Remedies

    Climate change has the potential to affect whether trade remedies will be recommended by the Trade Remedies Authority to the Secretary of State for International Trade.[12] A trade remedy measure can only be recommended if it is in the economic interest of the UK, which includes any climate-related submissions. Parties have the option to make submissions to the Secretary of State which must be given due consideration. As climate change becomes an increasingly pertinent issue of public interest, alongside the importance of the UK meeting its obligations under the Paris Agreement and the Climate Change Act 2008, a failure to consider climate change may lead to these decisions being legally challenged.[13] Furthermore, perhaps with recent evidence revealing that the fossil fuel industry’s profitability will dramatically retract, illustrating the profitability of green transition policies,[14] trade remedy measures may more likely be awarded for favourable climate policies.

    Climate-friendly trade challenges

    There may be an increased risk of challenges to trade policies aligned with the UK’s achievement of net zero, including price supports for renewable energy and green innovation investments and subsidies, which when lightly regulated and not accompanied by safeguards, may trigger WTO complaints and challenges.[15]

    EU-UK Trade and Cooperation Agreement (TCA)

    Notably, the EU-UK Trade and Cooperation Agreement (TCA) provides the freedom for either party to establish its own climate and environmental policies although they are subject to a level of climate protection which is agreed in the TCA and contains the 2030 targets of both the EU and the UK.[16] Parties may impose measures unilaterally subject to review by an arbitration panel where a measure significantly interferes with trade. If either side disagrees with measures imposed, they can seek review of the provisions or the TCA generally. There are no mechanisms for businesses to directly challenge non-compliance as it is an international treaty.[17]

    How trade law can help to address climate change

    Achieving net zero will require significant changes in consumption and production. Trade can play a role through removing trade barriers to products which can support the net zero transition and sharing knowledge concerning the implementation of the transition.[18] The UK Board of Trade acknowledges the desirable position of the UK to combine trade and environmental agendas. Trade law has the ability to strengthen net zero commitments, for example by committing to end fossil fuel subsidies by 2025 and ceasing support for fossil fuel energy sectors abroad.

    Dual natured relationship and possibilities – subsidies and tariffs

    The removal of barriers to trade may encourage the net zero transition and proliferate green technologies globally.[19] Trade law plays a key role in financing the fossil fuel industry, providing billions of dollars of subsidies to the fossil fuel industry annually.[20] To reach net zero, fossil fuel subsidies would need to be more transparent and reduced or phased out, and carbon tax exceptions be minimised in line with WTO rules and net zero commitments.[21] Subsidies for green technologies can generally comply with trade law if designed properly, and as of 2023 the lack of a working WTO appellate body means that laws such as the USA’s Inflation Reduction Act 2022, which arguably do breach trade law through product origin requirements, have not been tested in court. The UK does impose some trade barriers for green goods, such as the 14% tariff on bicycles and 10% tariff, which may increase prices on those goods for consumers.[22]

    Some expect trade law to shift away from favouring fossil fuel subsidies towards a preference for renewable energies, or at least put the two disciplines on an equal footing.[23] However, studies have shown that trade law is more permissive of fossil fuels than renewables.[24] This is because renewable subsidies are more vulnerable to challenge as they often rely on local content requirements (LCRs).[25] In contrast, fossil fuel subsidies target consumers and do not differentiate between recipients, thus making them harder to challenge under trade law. This demonstrates the ability of trade law to hinder the shift away from fossil fuels.

    Furthermore, in the case of trade in the energy sector, there is a misperception that climate policy is economically detrimental.[26] Indeed, almost half of all fossil fuels assets could be worthless because of the net zero transition. Therefore, it is often in trade actors’ economic interests to work towards switching to renewable energy.[27]

    Carbon border adjustment mechanisms

    Most economists agree that carbon pricing is a highly effective policy lever for reducing emissions. Carbon pricing already applies to many domestic firms, but one way of ensuring that emissions from foreign goods are also priced (and avoiding carbon leakage) is through carbon border adjustment mechanisms (CBAMs). The EU’s CBAM entered into force in 2023 and is a mechanism whereby EU importers of certain energy intensive goods, including cement and iron, would have to pay the difference between the carbon price in the goods’ country of origin and the carbon price that would have been paid were the goods produced in the EU.

    The UK is considering carbon border adjustment mechanisms. CBAMs have come under criticism from the Treasury Net Zero Review which outlined concerns regarding increasing the prices of goods in the midst of a cost of living crisis along with fears that this could compromise further trade deals.[28] However, ultimately the Review considered that the benefits of introducing a CBAM outweighed the negatives. Most recently, the UK Environmental Audit Committee (EAC) has called for a carbon border adjustment mechanism to address carbon leakage in order to achieve net zero. The EAC considered that the UK’s current approach of allocating free emissions trading scheme allowances to be insufficient to effectively drive the transition to net zero. A UK CBAM would ensure that equivalent carbon pricing is applied to imports and domestic production. Such policies could have the potential to create space for green policies in traditionally historic manufacturing areas.[29]

    Nonetheless, there are complexities with border measures including problems caused by inconsistencies in measuring carbon emissions and unclear effects on consumers and businesses. The Review also questioned the compatibility of CBAMs with WTO rules. The UK Government would prefer to see carbon leakage reduced at the source, thus opting for an international agreement to reduce emissions. Concerns regarding compatibility with WTO rules may be removed if the UK were to push for greater carbon pricing in the WTO arena and in FTA negotiations.[30]

    Free trade agreements and trade panels

    The UK has been criticised for failing to go further in terms of forming and leveraging climate ambition in trade deals. Critics argue that the UK places economic objectives before the environment.

    A new green trade strategy was proposed in October 2021 which joins negotiations of other countries on the Agreement on Climate Change, Trade and Sustainability (ACCTS). This agreement seeks to remove mutual barriers to environmental goods and services trade, eliminate fossil fuel subsidies and support voluntary eco-labelling programmes.

    In general, the explicit presence of climate policies or sustainable development objectives in trade treaties remains low. Moreover, the approach of the UK towards integrating climate considerations into new free trade agreements (FTAs), and its continuity agreements with former EU FTA partners is inconsistent.[31] Continuity agreements represent an opportunity to update existing FTAs to account for considerations which could assist in achieving net zero, however the UK Government has opted for an approach based on expediency, despite the provisions of several EU FTAs arguably being outdated.[32]

    It is essential that the UK includes ambitious references to net zero in FTAs so that they ensure compliance with the UK’s net zero commitments. This was demonstrated by the UK-New Zealand FTA, which is yet to enter into force but contains a ‘ground-breaking environment chapter’ which reaffirms the UK’s commitments under the Paris Agreement and Net Zero ambitions. This agreement includes the most comprehensive list of environmental goods on a FTA to date and also removes tariffs on green products including electric vehicles and wind turbine parts. Moreover, the deal demonstrates the ability for FTAs to include tangible environmental commitments as both countries have pledged to work together on a range of environmental issues which will assist the UK in achieving net zero. Examples include commitments to tackle illegal deforestation, and to deal with environmental challenges including air and marine pollution. Such commitments will be enforceable through the trade deal’s dispute settlement mechanism. This deal therefore demonstrates the possibility for trade law to significantly enhance the UK’s achievement of net zero.  

    As for existing trade agreements, there is opportunity for such agreements to be amended. The Trade Justice Movement and Friends of the Earth have proposed five principles to be taken into consideration when negotiating trade deals.[33] First, the agreement should not be viewed in isolation from the entity one is agreeing with. The EU-Mercosur agreement illustrates the danger of viewing agreements in isolation whereby at the time the FTA was entered into, non-binding environmental language was included while Brazil simultaneously introduced measures undermining these provisions. Second, climate and environment should be prioritised as in the absence of such prioritisation, it is very difficult to challenge measures which are detrimental to the environment but do not hinder profitability. Third, vague language (including agree to ‘promote’ or engage in ‘dialogue and cooperation’ as in the EU-Canada Trade Deal) should be replaced with binding and enforceable protections. Fourth, trade law should be democratised and full participation of civil society should be ensured.

    General exceptions

    The use of general exceptions is another key avenue through which environmental goals can be achieved through trade. Article XX of the General Agreement on Tariffs and Trade (GATT) provides for general exceptions to the GATT, including inter alia measures necessary to protect public morals and human, animal or plant life, or health. Green policies and instruments could therefore be justified under such exceptions. These exceptions can preclude the application of Article III of the GATT which prohibits discrimination of foreign producers vis-à-vis domestic producers. However, the potential for these exceptions to give effect to the net zero transition has been hindered by virtue of their treatment as secondary norms rather than carve outs, or otherwise as equal to primary norms.[34] Trade law’s prohibition on differentiation between two ‘like’ products also poses a significant challenge to the net zero transition as any discrimination between products based on their processes and production method (PPM) is deemed discriminatory, regardless of how  carbon intensive a product’s PPM is. Moreover, any possibility to invoke exceptions under Article XX face further challenges in respect of Article XX’s chapeau as illustrated by the Gasoline case.

    On the positive side, the WTO is increasingly interpreting the GATT less restrictively and with greater sensitivity to environmental measures.[35] Since the Tuna/Dolphin cases whereby the challenge to the US Marine Mammal Protection Act was held to be unjustifiable under Article XX GATT for imposing an impermissible extraterritorial restriction based on production processes, the WTO has found in favour of measures which would assist in driving the sustainability transition (US-Shrimp). Despite cases illuminating useful interpretations on what is considered necessary to protect human, animal or plant health under Article XX(b) (Brazil Retreaded Tyres), the requirements of Article XX have proved to be a difficult hurdle to surmount when seeking to justify environmental measures. Nonetheless, the ability for trade law to support the net zero transition is demonstrated.

    Greening of trade norms and interpretation

    Contrary to some interpretations by trade panels (India – Solar Cells), broadly stated environmental norms in free trade agreements can also generally (when they are non-discriminatory) support climate and environmental goals. There can be a ‘greening’ of broad norms such as that ‘states shall accord fair and equitable treatment’ which every ad hoc tribunal deciding investment disputes has the power to interpret.[36] Indeed, such norms have been interpreted and applied in detail.[37] The same approach could be applied to broad environmental norms which could be relevant where there is a conflict of norms or in providing an alternative interpretation to what would be a pure trade dispute in accordance with Article 31(3)(c) VCLT.[38]  However Vinuales has highlighted that aspects of trade law, including the national treatment standard, the specific prohibition on LCRs and the Agreement on Subsidies and Countervailing Duties, have been deliberately restrictively interpreted in favour of the fossil fuel industry.[39] 

    Another approach which can provide space for green industrial policies and the net zero transition by allowing for regulatory flexibility is the inclusion of references (either explicitly or implicitly) to sustainable development objectives in preambles to bilateral investment treaties and free trade agreements. In accordance with Article 31(2) of the 1969 Vienna Convention on the Law of Treaties (VCLT), a treaty’s context and purpose is to be derived inter alia from the treaty’s preamble. The preamble of the WTO Agreement recognises the objective of sustainable development and the importance of protecting and preserving the environment. References to sustainable development can also be found in the preamble to the Singapore– European Free Trade Association Free Trade Agreement in which the parties reaffirm ‘their commitment to the principles set out in the United Nations Charter and the Universal Declaration of Human Rights’ and the Energy Charter Treaty.

    Ultimately, the use of trade law to achieve the net zero transition is hindered by the interpretation of sustainability and climate measures within the confines of trade law (SD Myers v Canada). The underlying rationale for this approach is that internationally induced measures command higher legitimacy.[40] The primary issue is that although trade can support environmental and policy considerations, panels are reluctant to consider conflicts between environmental and trade considerations as normative conflicts. Rather, they are considered as conflicts of legitimacy which in turn impedes the net zero transition as trade considerations consistently trump environmental and climate measures. To surmount such conflicts, there could be a presumption that environmental measures adopted pursuant to a Multilateral Environmental Agreement are consistent with the chapeau of Article XX GATT which excludes measures that constitute arbitrary or unjustifiable discrimination or disguised restrictions on international trade from constituting exceptions.[41] By focusing on the link between domestic measures and international climate law this would help reduce suspicions of covert protectionism. Vinuales contends that if environmental law is properly construed and applied there is no reason to confine its operation to exceptions: trade disciplines such as Articles I, III or XI of the GATT when interpreted in light of Art 31(3)(c) of the VCLT may require an adjustment of the meaning of a term such as like products or other relevant expressions.

    Importance of ensuring a just transition to net zero

    When using trade law to facilitate the net zero transition, due regard should be given to continued economic growth and poverty reduction. Doing so requires a thorough understanding of the climate and development effects of trade policies.[42] Such policies include domestic carbon taxes and carbon border tax adjustments, removing subsidies to fossil fuels, reducing tariffs on green goods and ensuring consistency between taxes on so called ‘dirty’ and ‘clean’ goods.[43]

    As illustrated in a study by Mercure et al (2021), almost half of all fossil fuels assets could be worthless because of the net zero transition. As Viñuales (2021) has noted, this will lead to major geopolitical shifts as some economies, including China and Japan may benefit from the shift towards renewable energies, however other less profitable markets including Canada, Russia and the US could suffer from this transition. In light of these challenges, it is essential that international trade and trade policy take these risks into account in order to ensure a just transition.

    Trade law has in the past demonstrated its ability to effectively transition towards climate friendly policies. For example, the social and environmental pillars of sustainable development conflicted with respect to the pesticide DDT which has harmful environmental impacts but can assist in combating malaria. Therefore, instead of being subject to an outright trade ban, it is permitted in some areas ‘for pragmatic human health reasons’. A similar approach was taken in the Minamata Convention on Mercury. The use of thimerosal can assist in extending the lifespan of vaccines in remote areas without refrigeration and was therefore exempted from the prohibition of producing, exporting or importing mercury related products in the Convention. Moreover, the Minamata Convention opted for mercury thermometers to be phased out by 2020, rather than subjecting them to an outright ban. Similarly, the Montreal Protocol is an example of where trade measures facilitated the just transition away from the trade, production and use of CFCs. Here, a series of amendments to the Protocol  persuaded states to ratify the Protocol: Article 5 was amended to set a specific date beyond which developing states would not benefit from a 10 year grace period; Article 10 introduced the notion of financial support; while Article 10A introduced technology transfer.[44] Barrett has referred to this as ‘tipping’: by reducing the market for CFCs, it was less attractive to trade in these commodities and therefore widespread compliance was incentivised.[45] This combined with dialogue, extended time periods and financial supports facilitated a just transition. Likewise, when moving towards net zero, trade law may use a similar approach that reduces the market for certain products while providing reasonable exceptions or avoiding outright bans.

    Nationally determined contributions and trade agreements

    There is emerging support for the synergies between trade agreements and Nationally Determined Contributions (NDCs) under the Paris Agreement.[46] In particular, the net zero transition could be accelerated by leveraging provisions in trade agreements to take account of Parties to the Paris Agreement’s NDCs.[47] Obligations to cooperate on climate matters, trade liberalisation, and rules of origin for sustainable goods are among the areas that Parties can negotiate on in trade agreements to assist in tackling climate change. This may be particularly effective where parties to an agreement significantly rely on each other for imports and exports.[48] Furthermore, in their report, TradeLab identifies five categories of NDC goals where a trade related measure could be adopted to achieve the NDC: energy, building, waste, transport and land use, land-use change and forestry. The report notes that while WTO rules impact how Parties adopt various measures, and while there are areas for improvement, there is generally the opportunity to implement such measures in a WTO-compliant manner.

    Potential proposals that the UK Government could consider when negotiating/renegotiating trade agreements include restricting negative externalities from trade liberalisation by clarifying and expanding the scope of general and specific exceptions to account for the net zero transition.[49] Furthermore, where an agreed NDC is to ‘Adopt Net-Zero Deforestation Programmes’ for example, trade agreements could provide for additional cooperation and trade liberalisation could be restricted in the case of certain forest commodities.[50] Similarly, where parties endeavour to adapt to alternative energy sources and consumption practices, provision could be made for energy efficient and sustainable goods to be given preferential treatment in trade markets.[51] Notably, this is an area that the Centre for International Sustainable Development Law are advancing through their ‘High Climate Ambition Commitments to Sustainability in Regional Trade and Investment Treaties’ project, and if taken seriously, is an area that the UK could stand to gain both in its achievement of net zero, and fulfilment of its NDC.


    [1] Daniel Bodansky and Jessica Lawrence, ‘Trade and Environment’ in D. Bethlehem et al (eds.), The Oxford Handbook of International Trade Law (Oxford OUP 2008) Ch. 18, hereinafter ‘Bodansky and Lawrence (2008)’.

    [2] Paul Brenton and Vicky Chemutai, World Bank Group, ‘The Trade and Climate Change Nexus’, (2021); Travers Smith, ‘COP26 and international trade: new green trade inquiry and report launched’ (2021), hereinafter ‘Brenton and Chemutai (2021)’.

    [3] (n 2)  ‘Brenton and Chemutai (2021); WTO & UNEP, ‘Trade and Climate Change Report’ (WTO Publications, 2009) available at <https://www.wto.org/english/res_e/booksp_e/trade_climate_change_e.pdf> accessed 2 November 2022.

    [4] CCC, Reducing UK emissions – 2020 Progress Report to Parliament (June 2020).

    [5] Emily Lydgate and Chloe Anthony, ‘Can the UK Government be ‘world-leading’ in both trade and climate policy?’ (September 2020) UK Trade Policy Observatory, hereinafter ‘Lydgate and Anthony (2020)’.

    [6] Trade Justice movement, ‘Ten things you should know about Trade and Climate Change’

     <https://www.tjm.org.uk/trade-issues/10-things-trade-and-climate-change> accessed 7 July 2022.

    [7] (n 5) Lydgate and Anthony (2020).

    [8] Marie Claire Cordonier Segger and Jarrod Hepburn, ‘Climate Change and International Trade and Investment Law’, in R. Rayfuse and S. V. Scott, International Law in the Era of Climate Change (Cheltenham, UK: Edward Elgar Publishing 2012), 84-117;  Alexandre Genest, ‘Disputes on Sustainable Development in the WTO Regime’ in M-C Cordonier Segger, C.G. Weeramantry (eds) Sustainable Development Principles in the Decisions of International Courts and Tribunals 1992-2012 (Routledge 2017) 357-383.

    [9] Shaikh Eskanderand Sam Fankhauser, ‘The impact of climate legislation on trade-related carbon emissions 1997–2017’ (Grantham Institute, July 2021) <https://www.lse.ac.uk/granthaminstitute/publication/the-impact-of-climate-legislation-on-trade-related-carbon-emissions-1997-2017/ > accessed 7 July 2022 hereinafter ‘Eskanderand and Fankhauser (2021)’.

    [10] (n 9) Eskanderand and Fankhauser (2021).

    [11] (n 9) Eskanderand and Fankhauser (2021).

    [12] Fieldfisher press release, ‘Climate change to affect UK trade remedies decisions’ (13 October 2021) <https://www.fieldfisher.com/en/insights/climate-change-to-affect-uk-trade-remedies-decisio> accessed 6 July 2022.

    [13]Ibid.

    [14] Mercure et al, ‘Stranded fossil-fuel assets translate to major losses for investors in advanced economies’ (2022) 12 Nature Climate Change 532.

    [15] (n 5) Lydgate and Anthony (2020).

    [16] Markus Gehring, ‘Analysis 5 of the Brexit Deal: Environment and Climate Provisions’ (EU Law Analysis, 22 January 2021) <https://eulawanalysis.blogspot.com/2021/01/analysis-5-of-brexit-deal-environment.html?m=0> accessed 2 November 2022.

    [17] For example, UK-New Zealand Free Trade Agreement (signed on 28 February 2022); Chris Papanicolaou, ‘Climate Change Provisions of the EU-UK Trade and Cooperation Agreement’ (Jones Day, February 2021)<https://www.jonesday.com/en/insights/2021/02/climate-change-provisions-of-the-euuk-trade-and-cooperation-agreement> accessed 7 July 2022.

    [18] (n 2)  Brenton and Chemutai (2021).

    [19] Department for International Trade, ‘Board of Trade report: green trade’ (21 July 2021) <https://www.gov.uk/government/publications/board-of-trade-report-green-trade> accessed 7 July 2022.

    [20] Jorge Vinuales, ‘Geopolitics of the Energy Transformation’ (2021) 2 Revue européenne de droit 148, hereinafter “Vinuales (2021)”.

    [21] UK-EU Trade Deal; (n 5) Lydgate and Anthony (2020).

    [22] Ibid.

    [23] (n 20) Vinuales (2021).

    [24] Henok Birhanu Asmelash, ‘Energy Subsidies and WTO Dispute Settlement: Why Only Renewable Energy Subsidies Are Challenged’ (2015) 18(2) Journal of International Economic Law 261

    [25] (n 20) Vinuales (2021).

    [26] Jean-Francois Mercure et al, ‘Stranded fossil-fuel assets translate to major losses for investors in advanced economies’ (2022) 12 Nature Climate Change 532 <https://www.nature.com/articles/s41558-022-01356-y> accessed 6 July 2022

    [27] Markus W. Gehring and Emily Morison, ‘Climate and Energy Provisions in Trade Agreements with relevance to the Commonwealth’ (2020) Commonwealth International Trade Working Paper <https://doi.org/10.14217/f8ebf31e-en> accessed 2 November 2022.

    [28] Fiona Harvey, ‘High-carbon goods imported to UK should be subject to new tariffs, say MPs’ (The Guardian, 4 April 2022) <https://www.theguardian.com/environment/2022/apr/04/high-carbon-goods-imported-to-uk-should-be-subject-to-new-tariffs-say-mps#:~:text=A%20carbon%20border%20adjustment%20mechanism,away%20from%20environmentally%20damaging%20practices.> accessed 6 July 2022.

    [29] EY, ‘UK Parliamentary committee calls for development of UK Carbon Border policy’ (EY, 5 April 2022) < https://www.ey.com/en_gl/tax-alerts/uk-parliamentary-committee-calls-for-development-of-uk-carbon-border-policy > accessed 7 July 2022.

    [30] (n 5) Lydgate and Anthony (2020).

    [31] (n 5) Lydgate and Anthony (2020).

    [32] (n 5) Lydgate and Anthony (2020).

    [33] Kierra Box, ‘The climate crisis – how international trade must change’ (Friends of the Earth, February 2021) < https://policy.friendsoftheearth.uk/opinion/climate-crisis-how-international-trade-must-change > accessed 7 July 2022.

    [34] Jorje Vinuales and Pierre-Marie Dupuy, International Environmental Law (2nd edn, Cambridge University Press 2018) hereinafter ‘Vinuales (2018)’.

    [35] (n 1) Bodansky and Lawrence (2008)

    [36] Zachary Douglas, ‘The enforcement of environmental norms in investment treaty arbitration’, in P.-M. Dupuy and J. E. Viñuales (eds.), Harnessing Foreign Investment to Promote Environmental Protection: Incentives and Safeguards (Cambridge University Press, 2013)

    [37] Chemtura Corporation v Canada, PCA Case No. 2008-01; Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt, ICSID Case No. ARB/84/3(1992); (n 32) Vinuales (2018).

    [38] (n 34) Vinuales (2018).

    [39] (n 20) Vinuales (2021); See Canada-Certain Measures Affecting the Renewable Energy Generation Sector (WT/DS412, WT/DS426).

    [40] (n 34) Vinuales (2018).

    [41] Ibid.

    [42] (n 2) Brenton and Chemutai (2021).

    [43] (n 2) Brenton and Chemutai (2021); Joseph S. Shapiro, ‘The Environmental Bias Of Trade Policy’ (NBER Working Paper Series, 2020) finds that barriers to trade are higher in greener sectors in most countries, https://www.nber.org/papers/w26845> accessed 7 July 2022.

    [44] (n 34) Vinuales (2018).

    [45] Scott Barrett, ‘Credible Commitments, Focal Points and Tipping: the Strategy of Climate Treaty Design’, in Hahn, R. and A. Ulph (eds.), Climate change and common sense: essays in honour of Tom Schelling (Oxford University Press, 2012), pp. 29-49.

    [46] TradeLab, ‘Leveraging Trade Agreements to Promote the Implementation of Most Common NDCs’ (2021) <https://www.tradelab.org/single-post/leveraging-trade-agreements-to-promote-the-implementation-of-most-common-ndcs-under-the-paris-agreem> accessed 2 November 2022.

    [47]Christian Delev, ‘Trading Our Way Out of the Climate Crisis? Addressing Environmental Protection in the EU-Mexico Global Agreement Renegotiation Process’ (June 2022) <https://www.cisdl.org/about/engagement/high-climate-ambition-commitments-to-sustainability-in-regional-trade-and-investment-treaties/> accessed 2 November 2022.

    [48] See Delev (n 46) for a detailed consideration of how the EU-Mexico Global Agreement could incorporate the NDCs of the EU and Mexico.

    [49] Ibid.

    [50] Ibid.

    [51] Ibid.