The Research On General Exception Clause In International Investment Agreements

With the deepening of the global investment cooperation and the emergence of investment disputes,countries have started to pay attention to other interest issues other than essential security interests.As a vital part of the field of international investment law,IIA plays the role of protecting the interests of investors and maintaining the host country’s right to regulate.General Exceptions Clause,as a risk allocation provision of IIA,serves as an important tool to balance the interests of the host country and investors.The term “General Exceptions Clause” was introduced to international investment law from international trade law.Compared to its mature application in the original trade rules,the General Exceptions Clause in IIA needs to be clarified from various perspectives such as concept,nature,form and interpretation means.In developed countries with comparatively advanced legislative quality,the application of the General Exceptions Clause of IIA would usually face the problem of“same case with different judgments” in investment disputes involving the General Exceptions Clause.It would be always difficult for the host country to invoke the provision to exclude the illegality of its conduct.In recent years,the number of IIAs introduced in China has increased,however,some problems about the General Exceptions Clause occur such as the lack of provisions,the confusing forms,high repetition of contents,the ambiguity of expressions,unclear legal consequences and treaty conflicts.Judging from the establishment of the clause and the uncertainty of the jurisprudence in practice,the General Exceptions Clause fails to achieve its original purpose.China is enable to achieve the original intention of balancing the interests of the host country and investors by the means of refining the clause,that is,to effectively improve the ability to protect public interests from the perspective of perfection of laws.To be specific,in terms of the number of clauses,China needs to change its legislative concept and take the initiative to add general exceptions clauses,as well as improving the quality of these clauses;In terms of form and content,China should choose general exceptions clauses that are decentralized but refined to maintain the coordination of inter-clause relations;In terms of nature and interpretation means,China is bound to prudently perceive the nature of the general exceptions clauses and identify the interpretation rules of them,so as to avoid disputes in application.