Research On The "security Exception" Clause In The International Investment Legal System

Recently,under the background of great setback in the wave of globalization,national security issues have been frequently mentioned in the international economic field.On the 8th of March,2018,,the U.S.government announced that it imposed a 25% tariff on imported steel products and a 10% tariff on imported aluminum products on the grounds of damaging U.S.national security on the basis of section 232 of the 1962 Trade Expansion Act.And the situation was even more severe in the field of international investment.In 2017 alone,the number of M&A investment transactions which rejected by the U.S.Foreign Investment Commission for the national security reasons in the United States was about 20,which was a sharp increase over the past.Sovereign countries veto new investment and M&A investment on the grounds of damaging national security,and their basic legal basis is mainly derived from the provisions of "essential security interests exceptions" in the country's foreign investment law and the investment agreement which it has signed with foreign countries.Therefore,the research on the provisions of "essential security interests exceptions" in the international investment legal system has certain theoretical value and practical significance,especially for the Chinese government that proposed the "One Belt and One Road" initiative and the Chinese companies that are implementing the "going out" strategy.It is even more so.The paper focuses on the provisions of "security interests exceptions" in the international investment law system.Through the analysis of the texts of such provisions and the discussion of relevant international judicial and arbitration practices,the general theory and applicable issues related to such clauses are studied.On this basis,in conjunction with China's relevant legislation and contracting practices,the paper puts forward sound suggestions for how to adopt such provisions in domestic laws and foreign investment treaties.The paper consists of four parts: introduction,text,conclusion and appendix.The text is divided into five chapters.The first chapter is an overview of provisions of the "security interests exceptions".The provisions of the "security interests exceptions" is a kind of "exception clause" in international law.Therefore,it is necessary to conduct a preliminary analysis of the "exception clause." Later,I will discuss the concept,origin and function of the Provisions of the "security interests exceptions".The second chapter discusses the provisions of "security interests exceptions" in the international investment legal system.The international investment legal system is a system of rules that is jointly constituted by domestic laws concerning investment and international law,which are organically mutual linked.The sources of domestic law in the international investment legal system mainly include foreign investment laws and overseas investment laws of sovereign countries.The sources of international law in the international investment legal system mainly include bilateral investment agreements and regional investment agreements,world investment conventions,and international investment practices,but it stipulated that provisions of "security interests exceptions" is mainly foreign investment law,bilateral investment agreement,and regional investment agreement.Therefore,in this section,I will exemplify the typical expressions of the provisions of the "security interests exceptions" in the foreign investment law,bilateral investment agreement,and multilateral investment agreement and analyze the legal issues involved.The third chapter analyzes arbitration and judicial practice involving the provisions of "security interests exceptions" in arbitral and judicial practice,the reference to the provisions of the "security interests exceptions" is mainly ICSID Argentine arbitration case and a limited number of judicial precedents of the European Court of Justice.Therefore,I take the ICSID-related arbitration cases and the EU's relevant judicial precedents as the object of study,summarize the reasons and basis for "likely cases of different judgments" by ICSID's different arbitral tribunals and the European Court of Justice,to explore the logic and ideas concerning the interpretation and application of the provisions of "security interests exceptions" by arbitration and judicial bodies,and related arbitration and judicial practice has been considered and analyzed.The fourth chapter is the normative analysis of the provisions of "security interests exceptions".In the first three chapters,we discussed the provisions of "security interests exceptions" in the international investment legal system and examined the relevant arbitration and judicial practice.This chapter focuses on the normative analysis of the provisions of "security interests exceptions" concerning the scope of application,the purpose of permission,the mode of review,and legal consequences.The fifth chapter studies the provisions of "security interests exceptions" in China's foreign investment law and bilateral investment agreement signed by China.First of all,it analyzes the current situation and deficiencies of the provisions of "security interests exceptions" in China's foreign investment law and China's externally signed bilateral investment agreement.After that,it puts forward sound suggestions for China's relevant legislation and contracting practices.