The Question Of Application Of Bilateral Investment Treaty In Armed Conflict

The impact of armed conflicts on international investment law has not been given sufficient attention by the international legal scholars.It is generally believed that armed conflicts are an abnormal manifestation of the international order.In the event of armed conflicts,treaties such as BITs that regulate normal order will automatically become invalid.However,in recent years,due to conflicts in some regions,investors have suffered huge losses.The traditional,simple rule of total abrogation has been abandoned and replaced by approaches that rely on nuanced characterizations of different treaties and treaty provisions.A detailed discussion of compensation clauses,full security and protection clauses or security exception clauses has been launched.However,there are still many BITs in the international community that do not have any provisions related to armed conflict,and even if BIT contains relevant provisions,it will not be sufficient to solve the complex international investment problems brought about by armed conflicts.There is a lack of uniform rules of international law in this respect.The blank left In 1960 s by Vienna Convention on the Law of Treaty is urgently required to be filled.In view of this,the International Law Commission has issued the " Draft Articles on the Effects of Armed Conflict on Treaties".The ILC's work has helped to identify certain indicators and strengthened the revocation of any assumption of discontinuity.The International LawCommission intends to use the draft as a systematic legal system to gradually form customary international law.Under this background,based on China's cooperation with some of the countries along the Belt and Road,it mainly assumes the role of capital exporting country.This paper aims to study the utility of several armed conflict-related provisions included in the BIT,referring to the opinions of the international jurists and the arbitration of international arbitration tribunals.Practice,weighing foreign investor protection and the host country's sovereignty interests,analyzes the application of treaties and dispute settlement after armed conflicts.The first chapter is “The Current BITs' Articles and Their Roles in Armed Conflicts”.This chapter builds on the comprehensive analysis of various BITs in the international community,sums up the most important expressions of the three types of armed conflict-related clauses,and analyzes various clauses of its protection on investors.The Chapter Two is “The Application of BIT Treaties Without Armed Conflicts”.This chapter continues the logic of Chapter 2 and considers,If there is no stipulation in Chapter 2 for the armed conflicts,whether the armed conflicts can become a legal ground for the suspension or termination of the treaty? In order to answer this question,reference must be made to the treaty interpretation rules in international law.However,the Vienna Convention on the Law of Treaties,which is the universally-knowing source of international law,does not provide for this.the International Law Commission has issued the " Draft Articles on the Effects of Armed Conflict on Treaties".Although the EACT draft is currently only a draft,it cannot ignore the true influence of the EACT draft because it will profoundly affect the formation of rules of customary international law on the application of post-armed conflict treaties.Once the customary international law is formed,the draft will get the status of the source of international law.The Chapter Three is "The current armed conflicts clause of China's BITs",which is an analysis of all the specific clauses that China has signed.By the end of2017,China has signed 104 bilateral investment treaties,among which 4 BITs haveno provisions related to armed conflicts;100 BITs have "compensation clauses";only34 BITs contain "Full Safety and Protection Clauses";only 10 BITs have included the "security exception clause." Judging from the lack of quantity and the omission of articles,there is indeed much room for improvement.This chapter also makes recommendations on different categories of armed conflict-related provisions.In summary,this article first introduces the origin of the issue,discuss on compensation clauses,full security and protection clauses and security exception clauses,and then analyze the effects of "Draft Articles on the Effects of Armed Conflict on Treaties".This article puts the issue in particular in the context of the Belt and Road Initiative.It uses the overseas investment protection standard as a starting point,weighs the bilateral interests of the host country and investors,analyzes the legal risks of BITs,and finally puts forward a reasonable view.