Research On National Security Exceptions In International Investment Agreements

With the recovery of the world economy,trade protectionism and unilateralism have emerged.It is urgent for China to take measures to protect the national security interests and the legitimate interests of overseas investors while promoting the development of international investment and trade.However,as an exception exemption clause in international investment agreements,the national security exception clause is the basis for China to seek development in a complex international investment environment.In order to explore the characteristics of national security exception clauses in international investment agreements,this article analyzes 3301 international investment agreements in the UNCTAD database and finds that 349 of them have national security exception clauses.Based on these 349 international investment agreements,this article focuses on the self-judgment attributes,scope of application,and principles of various national security exception clauses,and analyzes the commonalities and differences between the different clauses.On this basis,this article makes reference to China’s practice and puts forward preliminary suggestions for improvement.In addition to the introduction and conclusion,the article consists of five parts.In the first part,the core connotation of "national security exception clause" is determined from the broad and narrow perspectives: "national security interest" and "exception exemption",and the general definition of "national security exception clause" is put forward: the provision that timely excludes the illegality of the behavior of the state party under specific conditions.At the same time,it discusses the origin and development of national security exception clause.In the second part,the article analyzes the attribute and reviewability of national security exceptions.There are two types of national security exceptions: self-judging and non-self judging.Non-self judging national security exceptions should be fully reviewed by international investment dispute settlement agencies,while self-judging national security exceptions are only subject to good faith review.In the third part,according to the scope of "national security",the national security exception clauses can be summarized into two categories: general and enumerative,including criminal or criminal offences,public infrastructure protection,GATT Article 20 "General Exceptions" and other elements.Moreover,"economic security" and "strategic industrial protection" belong to the scope of "national security exception".In the fourth part,the principle of good faith should be basically followed in the application of the national security exception,whether or not there is a clear provision of the principle of good faith in the provisions.From the perspective of customary international law,the contracting parties are required to implement and explain treaties in good faith,and the international investment dispute settlement agencies reviews them in good faith in practice.In the fifth part,there are many problems in China’s national security exceptions at the present stage,such as the low application rate,the lack of unified standards,the vague contents of the clauses,and the non-censorship exceptions.The article suggests that China should fully apply the national security exception clause,standardize the framework of national security exception clause,define the scope of "national security" and reserve the auditability of the agreed clauses.