The “Legitimate Expectations” of Investors and the CDM: Balancing Public Goods and Private Rights under the Climate Change Regime

The Kyoto Protocol’s Clean Development Mechanism raises novel questions about the law of international organizations, international investment law, and global administrative law. This note questions whether the CDM has created legal rights for private legal entities with an interest in CDM Executive Board decisions, and whether these entities should have the means to enforce these right vis-à-vis the Board or its members. It describes how these issues have arisen in the context of threats of legal action against the Board made by private legal entities, and how the Kyoto Parties have responded by discussing whether to shield the Board through grants of immunity. It concludes by recognizing the need to address the legitimate expectations of private investors to due process, but cautions against promoting the recognition of a legally actionable right to do so.