The Limits Of Discretion Self-Judging Emergency Clauses In International Investment Agreements

See UNCTAD Series on International Investment Policies on Development, Protection of National Security in International Investment Agreements, United Nations, Geneva, 2009 (UNCTAD report). See also Devas v. Republic of India PCA Case No 2013-09, Award on Jurisdiction and Merits [244-245] (“Devas v. India”). It should be noted that this is not a treaty standard of verification, but a national security standard. Therefore, the absence of a suspensive standard of review under the treaty, as found in other trade instruments such as the anti-dumping agreement, is not relevant to the interpretation of the self-assessment provisions. The discretion granted to states by international investment agreements to respond to (financial) crises is a topic of the ongoing debate in this investment book and beyond. The U.S. policy response has included “self-assessment clauses” in its recent investment contracts. These clauses provide that any contract does not prevent the United States from implementing certain measures that the United States deems “necessary” to protect its own essential security interests. Other capital-exporting countries have combined these so-called self-assessment clauses with additional mechanisms to make certain measures of the treaty-expanded protection measures.

Such clauses have yet to be tested in international investment arbitration proceedings. Keywords: investment rights; International law; Self-judgment Measures not excluded Mona Pinchis-Paulsen, Trade Multilateralism and National Security: Antinomies in the history of the International Trade Organisation, March 2019, 15 accessed: 10 April 2019 (`1). Without restricting the universality of another exception or qualification, none of the Charter`s obligations apply to a measure or agreement… (c) in times of war or other emergencies in international relations relating to the protection of their [essential] security interests” … 3.The provisions of section 86 relating to the interpretation and resolution of disputes do not apply to paragraphs 1 and 2 of this article, but each member has an independent power of interpretation.” Report of the editorial board on the preparatory committee of the UN Conference on Trade and Employment, doc. E/PC/T/34 (March 5, 1947), art. 37 (“Subject to the requirement that such measures not be applied in a manner that constitutes a means of arbitrary or unjustified discrimination between countries where conditions are identical or a disguised restriction on international trade, nothing should be interpreted in Chapter V to prevent the adoption or implementation of measures by a member:… (e) in times of war or other emergencies in international relations relating to the protection of a member`s essential security interests.”

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