The General Exception Clause In International Investment Agreements

In the field of international investment,more and more attention has been paid to the balance between the protection of investors and the public interest of the host cou ntry,the main reason is that the international investment agreement(IIA)itself has not always been balanced between investor protection and the protection of the public int erests of the host country,and the balance of international investment dispute settleme nt is excessively tilted to investors,which makes it difficult to achieve the public polic y objectives of the host country.Moreover,with the two-way flow of international ca pital,the dual roles of states parties as investor's home country and host country have further deepened the pursuit of the balance of interests among states parties in the IIA.In view of the current situation of excessive protection of investors,in order to achiev e a more reasonable balance,certain measures should be taken to ensure the exercise of the regulatory right of the host country,the general exception clause in IIA is an eff ective means.However,no matter in theory or in practice,the study and application o f the general exception clause are far from its actual important role,that is to say,the s tudy of the general exception clause is far from matching the role it should play,on the other hand,it is also a disadvantageous factor for the pursuit of balanced interests bet ween the investors and the host country.The study of general exception clauses is still in its infancy in China and abroad,and has not reached maturity,even the basic concepts and types have some confusion,and the construction and interpretation of the clauses cannot be unified.In fact,the con cept of general exception clause should be a broad sense,the security exceptions and f inancial prudence exceptions are attributed to them,moreover,the distinguishing stan dard between general exception clauses and non-general exception clauses cannot be j ust on the surface,some clauses which are not labeled as "general exception" or "exce ption" should be classified as general exception clauses as long as they have the corre sponding characteristics of excluding the malfeasance of host country measures.From the form,the general exception clause can be divided into the clause entitled "general exception" or not,the clause listed or described and the clause centralized or distribut ed;from the content,the general exception clause can be divided into the broad or nar row clause,the limited restrictive or more restrictive clause,the clause applicable to al l the agreement or not,the clause based on the wording of the general exception claus e in GATT or GATS or defining its own wording,from the procedure,the general exc eption clause can be divided into the clause required a notification obligation or not,the clause required consultations or not and the clause required a joint written reportor not.From the above distinction,we can not only see the diversification of the type s of general exception clauses,but also the confusion of the identification standards of general exception clauses.On the structure,the general exception clause of the specifi cation is divided into four parts: scope of application,objective of application,precon dition of application and relationship requirement.In the interpretation,the provisions of the agreement itself shall prevail,along with VCLT and refer to the interpretive m ethods of GATT article 20,while the application of a necessity and determined prece dent should be embraced with caution as reference factors.Based on the important balancing effect of general exceptions and the current res earch status,the defects of general exceptions need to be analyzed and improved.The defects are mainly reflected in the absence of theclause itself,,the randomness of the f orms of expression and the insufficiency of the contents.In view of the defects,it is n ecessary to supplement the clause,select the appropriate forms of expression when set tingit,and improve the contents of the clause.In addition to the above contents,there i s also a very important dispute about the general exception clause,that is,whether the clause has the nature of self-judging,which can be comprehensively judged from the perspectives of whether the agreement has clear provisions,the wording structure of t he clause,national customs and practices.