A Study On The Interpretation And Application Of Essential Security Interest Exception Clause In The BIT

Essential security interest exception clause is an important clause in bilateral investment treaties(hereinafter referred to as BIT!).Essential security interest exception clause in international economic law is also called Non-Preclude Measures Provisions!. The purpose of the clause is to entitle the host-government to take necessary measures to protect its essential security interests in case of emergency, thus not being responsible for treaty violation. Argentina#s series of cases being filed at ICSID demonstrated the interpretation and application dilemma of essential security interest exception clause. We should pay more attention to such a clause.This paper adopts the methods of textual analysis, historical analysis, comparative analysis, and case analysis aiming to have a sound analysis of the interpretation and application of essential security interest exception clause, and to make some legal suggestions to improve China#s essential security interest exception clause in BITs. Except for the introduction part and conclusion part, this paper is divided into four major parts.The first part is an overview of the clause, including its concept and origins, the necessity of it, and the interpretation and application problems of it in the perspective of two ICSID cases involving Argentina, the awards of which are contradictory to each other.The second part is an analysis of the judging body of the clause. Essential security interest exception clause can be divided into two categories-non-self-judging clauses, and self-judging clauses. The judging body of the above two kinds of clauses are different from each other.The third part analyses the judging criteria of essential security interest exception clause. I will go deep into the international investment arbitration practice centering on specific controversial issues, wishing to have a profound research on what is essential security interest and what constitutes exception.The fourth part contains a rough summary of the status quo of the clause home and aboard and the inadequateness of our country#s such clause. Last but not least, the paper gives some suggestions to our country#s legal practice regarding essential security interest exception clause.