Research On The Fundamental Security Exception Clause In International Investment Agreements

In recent years,as countries attach importance to national security,the fundamental security exception clause has gradually become a common provision in international investment agreements.The fundamental security exception clause is intended to reduce the legal risks in the event of an international investment dispute and to balance the relationship between the state and the investor,which is of great importance to the state.However,in practice,the series of arbitration cases arising from the Argentine economic crisis at the beginning of this century have demonstrated that there are still many problems in the application of the clause,as different arbitral tribunals have interpreted the application and wording of the clause differently when reviewing the clause,which has ultimately led to different judgments in such cases.After describing the concept,development and theoretical basis of the fundamental security exception clause,this article examines the relationship between the fundamental security exception clause and rules of customary international law,expropriation clauses and rebus sic stantibus,in order to set the stage for the interpretation and application of the clause in the following paragraphs.This is followed by an analysis of the composition of the clause and the relevant treaty practice,an interpretation of the clause from a textual perspective,and the possible dilemmas and problems that may arise in the practice of the clause.It then introduces the Argentine series of investment arbitration cases and Deutsche Telekom AG v.India,focusing on the controversial focus of the application of the clause in these cases,and provides an in-depth analysis of the arbitrability,nature,review path,target scope and legal consequences of the clause in light of current theory and practice,and explores the root causes of the different attitudes of arbitral tribunals towards the fundamental security exception clause.Finally,it points out the necessity of improving the fundamental security exception clause in the light of the current situation of China's investment development and the current contracting situation,and argues that China should include the improvement of the fundamental security exception clause in the international investment agreements signed with foreign countries,clarify the nature of the clause according to different situations,and clarify the wording and content of the clause,so as to provide theoretical support for the ongoing development of the China-EU comprehensive investment agreement and the possible new negotiations of the China-US bilateral investment agreement in the future.so as to promote investment while protecting China's fundamental security interests to the greatest extent possible.