The Dilemma And Resolve Of The Essential Security Interests Exception Clause In International Investment

As one of the exceptions,the exception clause of the essential security interest plays a important role in balancing the risk distribution between the national security interest of one's country and the investment interest of investors,and also plays a role of self-protection in safeguarding the security interests of a country's sovereignty.During the economic crisis in Argentina,American investors filed a series of international investment arbitration cases against ICSID in response to the emergency measures taken by the Argentine government.According to the article 11 of 1991 U.S-Argentina Bilateral Investment Treaty,the Argentine government claims an exemption in a series of cases.In the course of the case adjudication,the dilemma of the application of the exception clause of the essential security interest has been constantly highlighted,such as a series of problems include the scope and conditions of application of this clause is unclear,and consequences of application is unidentified.Therefore,the application of this clause becomes an controversial content on international investment law.In order to solve the dilemma of the application of this provision,from the perspective of the international,firstly we need to explain the scope of the provision according to Vienna Convention on the Law of Treaties,secondly clarify the applicable conditions of the article,and distinguish the application of customary international law and the application of the article.The other already stable methods for explaining the constituent elements identifies the "necessity" could be applied to the explanation of the article.The tribunal should examine its application within the framework of goodwill principles,and try to reach a consensus on the application of uniform standards in different cases to reduce international disputes.From the view of the contracting parties,in the process of the conclusion of a treaty,the scope of the provision of essential security interest should be clarified,the nature of self-judgment and non-judgmental of the clause also should be clarified,the necessary conditions for the application of the clause should be stated in the text of the treaty,and make a clear liability of the application of the consequences of the provision.