On Non-Precluded Measure Clauses In Treaties Relative To International Energy Investment

China is facing a severe energy crisis. The goverment adopts two aspects policies to deal with it from domestic and abroad. On the one hand, supported by "Going out" energy strategy, energy investment and cooperation have been carrying out oversea, and on the other hand, energy sector is opening and new energy sources are developing and deep-sea energy is exploiting, meanwhile, energy efficiency is improving. Though these efforts are effective, serious risks are coming. Due to the success of China’s energy investment overseas, the host countries are anxious and jealous, and take various exploits. There is also too much hatred and destruction from nationalists in those countries. Thus investment security has become an imminent thorny problem. In regulation of foreign energy investment and cooperation in China domestic energy field, energy sovereignty was exposed to international oil giants for lack of relevant laws. So conserving energy sovereignty is an unavoidable issue."Non-precluded measure" clause has the important value to solve above issues. It has obvious orientation to host country and its original intention is to maintain sovereignty of host country in order to get a rebalance between the host country and the foreign investors. With further improving and refining of NPM clause, its functions including preventing host country to abuse police power, limiting the country to find pleas outside of the investment treaty and regulating ICSID tribunal’s discretion in interpretation and application review of the clause are manifest. In this way, NPM clause provides a strong protection to international energy investment.Many countries, including China, have a dual identity in international energy investment fields. It is the focus of attention for those countries to give full play to the function of the clause about maintaining energy sovereignty and protecting energy investors, and to obtain coordinate between those two functions. The equilibrium point is fair, reasonable and justified. Maintaining energy sovereignty of host country by NPM clause conforms to the concept of rank value. If the host country abuses the clause and infringes interest of investors guised by energy sovereignty, NPM clause would play restriction and defense function to such actions. China relies on NPM clause to protect her legitimate right----energy sovereignty. At the same time, China uses the clause against abusing energy regulation power by host country to protect legitimate rights and interests of her energy investors.The function of NPM clause can not play very well without interpretation and application review of the clause. The interpretation of NPM clause should abide by the framework set up by No.31and32terms in "Vienna Convention on the Law of Treaties". The material which the interpretation would depend on should arrange in turn like:First, the treaty itself, i.e. its context, Second, the treaty’s relative data and material, combined with usual practice of the contracting parties to explore the true meaning, and last, international practice or rules. Application review of NPM clause should distinguish its property, and then chose different standards of review. It is a controversial issue on the consequence of the clause application. The paper is for the view that application of NPM clause can exempt host country’s substantive obligations. When the host country defends successfully with NPM clause, the investors suffered to bear all loss themselves, and no other ways to ask for relief. Once the host fails to invoke the NPM clause, again refuses to perform the award of ICSID tribunal invoking the doctrine of sovereign immunity, the investors can apply for its home country to start diplomatic protection or bring a lawsuit to International Court of justice.There are only8BITs containing NPM clause among over130ones signed by China, and it shows intermittent, not being followed normally by other BITs. This is mainly because Chinese BIT have been influenced by German BIT and stressed to attract foreign investment. As the second largest FDI user and third foreign investment economic entity in the world, China has to revise and improve its NPM clause imperatively, especially for the protection of China energy sovereignty and its overseas energy investment. Lack of NPM clause, China’s energy sovereignty reduced to mere bare right. When infringed by host countries’ actions related to sovereignty, Chinse energy investors have to depend on stable clause and damages clause to claim compensation. Because of their inherent flaw, their effective security function are difficult to give full play to energy investment safety. As the second largest FDI user and third foreign investment economic entity in the world, China has to revise and improve its NPM clause imperatively in order to protect her energy sovereignty and overseas energy investment.Based on the reality of China energy investment, China’s NPM clause should adhere to the principle of single BIT Model, adopt "total based, score combined" pattern, obscure self-judgment property, and enrich and refine the content. Meanwhile, take the position of narrow interpretation of the clause in practice.