The Investment Treaty Arbitration Review (Edition 8, 2023)

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 energy sector and the critical roles of industry and quantum experts 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. We evaluate the two critical steps of causation analysis: first, evaluating whether the alleged breaches or violations are connected to the claimed harm and, second, assessing whether the harm has caused the claimant to suffer damage. We then assess recent examples from climate change-related investment arbitrations to illustrate these concepts. We conclude with observations regarding the increased importance of expert causation analysis as a result of investment arbitrations arising from climate change policy and the energy transition.

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