Study On The Application Of BIT Non-Precluded Measures Provisions In Energy Investment

Protecting the rights and interests of foreign investors is one of the core objectives of international investment law,but investment protection is overemphasized in both investment agreements and arbitration practices.After the Argentine crisis,the host countries are unwilling to sacrifice public interests to protect investment(especially in the field of energy investment),so this article advocates that the role of non-precluded measures provisions is of great significance for safeguarding the energy sovereignty of the host country and guaranteeing the legitimate exercise of the police power of the host country.The function of the non-precluded measures provisions is to exempt the host country from liability for breach of contract in some cases.At present,there is no unified international energy investment treaty.Bilateral investment agreement(hereinafter referred to as BIT)is the main basis for solving investment disputes.Therefore,this paper studies non-precluded measures provisions in BIT from the perspective of energy investment.In the first part of this paper,the concept and design of non-precluded measures provisions are pointed out.The second part analyses the provisions of non-precluded measures provisions in American-style BIT and European-style BIT.The third part analyses the five dilemmas in the application of non-precluded measures provisions in BIT(uncertain interpretation methods,inconsistent review standards,inconsistent legal consequences,conflicts with indirect levy clauses and non-precluded measures provisions in multilateral investment treaties).The fourth part analyses the shortcomings of non-precluded measures provisions in BIT signed by China,and puts forward the text improvement countermeasures from the perspectives of adhering to a single model,creating a reasonable layout,improving the core content and defining the attributes of non-precluded measures provisions.non-precluded measures provisions of self-judgment attributes need to be reviewed in accordance with the principle of good faith,non-precluded measures provisions of non-self-judgment attributes can be reviewed by the European Court of Human Rights using the "margin of appreciation doctrine".The arbitral tribunal should explore the purpose and original intention of BIT,row a reasonable scope for the application of the allowable items of non-precluded measures provisions and give the host country the maximum respect for its legal police power,and exempt foreign investors from the loss caused by the host country's actions in accordance with the allowable items of non-precluded measures provisions.