The Investment Treaty Arbitration Review (Edition 6, 2021)

Expert Role in Causation Analysis for Energy Transition-Related Arbitration

Christopher Goncalves and Alayna Tria evaluate the importance of causation in investment arbitration for the natural gas and power sectors, and the critical role industry and quantum experts play in causation analysis. This includes expert assessment of the policy and regulatory causes of the alleged harm and isolation of these factors from ongoing market and economic changes that are unrelated to the alleged violations. They evaluate the critical two steps of causation analysis: first, evaluating whether or not the alleged breaches or violations are connected to the claimed harm, and second, assessing whether or not the harm has led to damages. They then assess recent examples from climate change-related investment arbitrations to illustrate these concepts. They conclude with observations regarding the increased importance of expert causation analysis as a result of investment arbitrations wrought of climate change policy and the energy transition.

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