Study On Legal Issues Of Non-Precluded Measures Clause In BITs

In state-to-state bilateral investment activities,the State party reserves its right to take direct or indirect measures of investment activities to safeguard the country's core interests.As an allowable matter,it is an exception to the investment agreement commitments.This nature of the Non-Precluded Measures Clause ensures that the State has the right to take direct or indirect measures on the investor's investment activities on the basis of its fundamental interests and can transfer the economic losses caused by the actions taken to the investors.It is essential to balance the risks and interests between the host country and foreign investors.When applying the Non-Precluded Measures Clause,there is still a drawback in the review of the relevance factor which is of one of the applicable conditions.As the basic conditions for the host country to take actions on investment activities to safeguard the country's core interests,whether or not it has the power of self-judgment is the source of the host country's rights.Therefore,according to the Non-Precluded Measures Clause,whether the relevance factor should be reviewed and how to improve the methodology are very important.Given that these issues still do not have a definite conclusion,the author made a solution based on specific analysis.At the same time,in the practice of arbitration,how does an arbitral tribunal balance the will of arbitration parties and ensure the efficiency of arbitration,how to better explain the text of the treaty,and how to resolve whether the core interests include economic crisis and other international differences.The questions will be the focus of this article.This article analyzes a large number of BITs and cases,discusses the various performances of Non-Precluded Measures Clause in BITs,to find and solve the problems existing in the applicable conditions of Non-Precluded Measures Clause.For example,in the study of arbitration practice,the bottlenecks of the international law in using to explain the treaty and the necessity of compensation and other issues.Through the study of theories and cases,such as the LG&E case,CMS case,etc.,the author collated and analyzed the views of many scholars in the world,and at the same time proposed new ideas and suggestions for solving problems and solved the problems in the interpretation of Non-Precluded Measures Clauses.Finally,the paper further discusses the problems existing in Non-Precluded Measures Clause in Chinese BITs.Currently,China does not have a model document for bilateral investment agreements,nor a standard text for non-exclusive measures.At the same time,China's Non-Precluded Measures Clauses have very low utilization rates in its BITs,and some BITs that have Non-Precluded Measures Clauses are designed to be very arbitrary.If these problems remain,they are detrimental to the maintenance of China's core interests.This article analyzes these issues in detail and makes a profound discussion on how to solve these problems and improve the significance of non-exclusion measures in China.