Research On Essential Security Exception Clause In Bilateral Investment Treaty

Bilateral investment treaties (also referred to as BIT) is an important part of international investment law, it has played an important role in the protection of foreign investment.Essential security exception(hereinafter ESE clause clause) is a clause that host country take measures to protect its essential security interests and public purpose, is an integral part of BIT.according to the image of its role,it can be called the "safety valve" and "risk allocation device".According to UNCTAD statistics, until 2008, there is 2676 BITS in the world, which contains more than 200 ESE clause. Accepted in various international judicial accept more and more investment dispute cases between investors and host country year by year, but involve ESE clause cases are rare. Until after the 2001 economic crisis in Argentina, ICSID tribunal accepted the several cases of Argentina v. U.S. investors, basically the same case, the same terms of defense, the tribunal has made different decisions.the interpretation and application of ESE clause attract widespread attention widespread concern, international organizations, international investment law began to do depth research on essential security exception clause. The article is using empirical analysis, comparative analysis and literature research methods, divided into four parts addition to the introduction and conclusion, after discourse essential security exception clause terms of major exceptions to the concept of security, set the mode of discourse, the safety exception clause of the major problems for assessment, the proposed exception improve the safety of China's major recommendations.The first part is about an overview of ESE clause. This section briefly describes the concept, functions and contracting practices of ESE clause, and then introduces a major security exception generation, development process, particularly the development of a major security exceptions, and the safety of the major recent exception of four categories made.The second part, set the mode of ESE clause. Specified in Appendix A major security exception, and the other in the body of the treaty through a dedicated or specialized terms of the treaty.The third part of the problems in ESE clause and Comments. Bilateral investment treaties for lack of a clear definition of "public order", "essential security interests" concept to analyze the relationship between different areas and the scope of application; of international customary law, the exemption clause and the major security analysis and comparison of derived exception The arbitral tribunal shall apply to a major security main exception, when necessary, customary international law as a supplement to the conclusion; were to judge demonstrated ESE clause and non-self-critical security to determine the nature of the ESE clause; in compensation issues, finds that quoted major security exception that is exempt from the host material liability to investors.The last part is about China's practice of ESE clause. This section first introduces the status of ESE clause in our BITs, and then analyzes the problems with it. At last, the author provides some recommendations on China's BITs practice of setting ESE clause.