Research On Essential Security Exception Clause In Bilateral Investment Treaties

Bilateral Investment Treaties also called BITs are effective tools in protecting investors’rights and interests,and also provide capital movement around the world with considerable guarantee. As an exception clause in BITs, the Essential Security Exception Clause is vital important for distributing risks and balancing interests between host countries and foreign investors.Under the influence of international investment liberalization, investment access liberalization, improving investment treatment requirement and protecting national security interests are the key issues in international investment field. In 2001, the economic crisis broke out in Argentina, American investors sue Argentina government for damaging the interests of investors to the International Center for Settlement of Investment Disputes(hereinafter ICSID), then the Essential Security Exception Clause attracts extensive attentions, and also raises wide discussion about relevant issues of the Essential Security Exception Clause.The article is divided into five major chapters, including:The first chapter is the overview of the Essential Security Exception Clause. From the historical development of the clause starting, analyzing the meaning of the clause and distinguishing from relevant concepts. And also discuss functions and constitutive requirements of the Essential Security Exception Clause.The second chapter is the text explanation of the Essential Security Exception Clause in BITs. Analyze the clause in different BITs, and contrast with the clause in Chinese BITs. Combining the constitutive requirements of the clause, analyzing existing problems about the clause in the text of BITs。The third chapter is about investigate of the Essential Security Exception Clause. Combining the practice of ICSID, make it clear between jurisdiction and judicial review.Analyzing the reviewing of the clause from two aspects, scope and standard of investigation.The fourth chapter is about legal application of the Essential Security Exception Clause.Combining related cases of Argentina,analysis comparatively legal application about related cases.And analvzing the differenece between the clause of BITs and the emergency situation of customary internaitonal law.The fifth chapter is the contracting practice and solution countermeasures about this clause in China. Analyze and research Chinese contracting practice systematically,and analyze the existing problems about the Essential Security Exception Clause in our BITs. And also research the value of the clause for practice,then make suggestions.