The Research On General Exception Clause In International Investment Agreement And On China's Choice

From the beginning of 21st century,with the popularity of the concept of sustainable development,the appearing negative effects of economic globalization and the rise of global civil society and nongovernmental organizations,sovereign states worldwide begin to notice that the international investment treaties' single investment protection goal has unduly limited the necessary sovereignty of host countries and has even cause damage to the public interest.So the international society are actively promoting the reform of the international investment law system.More and more countries are increasingly adding general exception clauses to their international investment agreement to reserve more policy space for the host countries' public interest protection,making the international investment system more balanced in protecting the interest of investors as well as the host states.However,the general exception clause originated in the field of international trade and its function of interests balance in the field of international investment is taken seriously by contracting parties only in recent years.And compared to other popularly used substantive clauses in the international investment agreement,the use of general exception clause is less mature.The forms of general exception clause in different international investment agreement don't appear to be unanimous and there is no international investment arbitration practice citing the general exception clauses.And in the academic field of international investment,scholars have different opinions on general exception clause from different aspects,including its function,nature,explanation and review standards.This paper affirms the necessity of general exception clause in international investment treaties.But in order to achieve the function of the general exception clause in balancing interest between investors and host countries,it is necessary to do a detailed study on this clause.This paper consists of the following five chapters in addition to the introduction and conclusion:Chapter one mainly defines the concept of general exception clause,making it clear that the general exception clause is a kind of exception which is applicable to the whole investment agreement to protect the public interest of the host country.Firstly the "public interest",as the core concept is thoroughly analyzed.Then to further clarify the concept of general exception clause,the comparison between general exception,non-precluded measures special exception clause and security exception clause is made.Chapter two makes an detailed analysis on the necessity of general exception clauses in international investment agreements from three points,including the arising attention paid on public interest protection,the reform of international investment legal system toward a more balanced pattern and the function of general exceptions in balancing interest between investors and host countries.In a word,general exception clause will effectively promote sustainable development of international investment law as well as the investors'and host countries'.Chapter three summarizes the present development trends and the characteristics of the general exception clause.The general exception is divided into three parts according to its phrase form,which are preface requirements,the public interest goals and the connection between the goals and the measures taken by host countries.Then in order to draw attention of the arbitration tribunal on the public interest of host countries,two kinds of interpretation method of the general exception clause are introduced.The first one is the interpretation method from the sustainable development view.And the second one is the the interpretation method taking example by the WTO.They provide guidance for the arbitration tribunal in interpreting clauses of international investment agreements.And help restrict the discretion of the arbitration tribunal.Chapter four makes study on the review and application of general exception clause in arbitration practice.First considering the interest-balance function of the general exception clause and the self-judging nature of major security exception clause,this paper holds that the nature of general exception shouldn't adopt the way of one size fits all.It all depends on the actual national conditions and the specific goals of public interests.Moreover,whether self-judging clause or non-self-judging clause,the review of the arbitration tribunal cannot be ruled out.Chapter five gives suggestions on how to design general exception clause in international investment agreement based on China's current dual identity as both the great investment importer and exporter in the international investment area,aiming to provide practical guides for China's current or future investment agreement signing or modification.