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. Delegation Minutes, July 4, NARA, Record Group 43, International Trade Files, Box 133, Folder marked „Delegation of Minutes U.S. delegation (Geneva 1947) April-June 1947 as cited in K.J. Vandevelde, the First Bilateral Investment Treaty: US Post-war Friendship, and Navigation Treaty (OUP 2017); („Nothing in this Charter should be construed to prevent a member from accepting or executing a measure it deems necessary:… (c) in times of war or other emergencies in international relations officially declared by the member concerned with regard to the protection of his or her essential security interests.” 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.” This article examines the non-excluded measures clauses in various international investment contract programmes. As a result of this investigation, it addresses two questions: to what extent do the „autonomous” clauses relating to non-excluded measures make the state, which takes action, the sole arbiter to determine whether a measure is excluded from the contract? If the state is not literally the sole arbiter, what does it mean that a clause of measures not excluded is „self-condemned”? The article will conclude that too much has been derived from the term „self-assessment.” In most cases, the courts will be able to verify the referral of these self-judgment clauses – the question is how and when. Simple assumptions of self-assessment of clauses may place too much emphasis on labels or short rankings, to the detriment of the interpretation of all words in a provision of the treaty.

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