Study On Public Health Exception Clauses In International Investment Agreements

The birth of international investment agreement is to promote investment,protect investors’ interests from being damaged by changes in the domestic environment of host country,the older investment treaties leave the host country with extremely limited space to exercise the right to regulate,but with the deepening development of globalization,the traditional provisions based on investment protection have shown drawbacks.On the one hand,the neglect of public concerns of host countries frequently triggers investment disputes,on the other hand,many public health problems have followed with rapid economic development,especially the COVID-19 outbreak at the end of 2019,which has brought a violent impact on the international investment environment,and the international community’s attention to public health has reached an unprecedented level.As a representative public interest,public health is related to personal development,public order stability and even national security,and one-sided investment protection will only aggravate the host countries’ public health crisis.In the face of this major concern,it is important for state to provide a good public health environment and promote sustainable development of social public health.Therefore,it is a solution to establish public health exception clauses in IIAs.The public health exception clause has the value orientation of the host country,which redistributes the risk between the investor and the host country by giving the host country the right to regulate the public health.However,there is no denying that the public health exception clause is not perfect,and its vague wording endows the arbitral tribunal with great discretion,which leads to the dilemma of application.With the further development of international investment,the improvement of the public health exception clause should be in the direction of promoting the balance of interests between foreign investors and host countries and realizing the sustainable development of international investment.This paper is divided into four chapters.Chapter 1 firstly summarizes the connotation of public health and its relationship with international investment,then introduces the concept,types,historical evolution and theoretical basis of public health exception clause,and clarifies the feasibility of invoking the public health exception clause for non-traditional national security.Chapter 2 selects classic cases related to public health of international trade and investment,also explores possible charges arising from national epidemic prevention measures in the context of COVID-19,and clarifies the dilemma of the absence and the benefits of existence.On this basis,it points out the value of the public health exception clause in balancing the interests of investors and the host country.The thinking of this chapter will run through the writing of the paper.Chapter 3 is a theoretical discussion from the perspective of the application of the public health exception clause in ISDS,this chapter analyzes the arbitral tribunal’s attitude to the public health issues,sorts out the application status of the public health exception clause,explores the relationship between the public health exception clause and the customary international law,the interpretation of the public health exception clause,and the review path of invoking the public health exception clause,and creatively explore its relationship to international peace and security paving the way for the improvement of the public health exception clause.Chapter 4 will turn to China,as a capital importer and capital exporter,China also has problems of lack of public health exception clause,imperfect clauses and weak applicability.In view of these problems and combined with the above research,writer will put forward proposals to improve the public health exception clause.It should be guided by the vision of a community with a shared future for mankind,supplementary refinement and improvement of elements,forming a "combined total points" public health exception pattern,and in coordination with other provisions,to build a system of rules to protect public health.