Bilateral Investment Treaties

Finally, one unique course may be to avoid a solution under public international law entirely, and instead, the Arctic coastal states may find a remedy through private international law, perhaps through the humble bilateral investment treaty. Interestingly, private enterprise has accommodated for an increasingly volatile environment of energy exploitation—an environment in which investors have grappled with governmental expropriation, unilateral changes to the tax regime, or other sources of economic and political instability.¹³¹ If the coastal states were to enter into a bilateral investment treaty specifically for the benefit of the oil and gas industry, the diplomatic negotiations over such a treaty may accomplish what an ATS-style structure, the CLCS, or any one of the formalists' legal “solutions” never could: provide the Arctic with a stable legal regime. Because bilateral investment treaties often include dispute resolution, security, investment protections, and a host of other facilitating mechanisms, many of the Arctic's chilling effects on energy development may be avoided.¹³² While the exact nature of such a bilateral investment treaty is beyond the scope of this Article, an agreement under private international law could be a plausible way forward.