国际投资法中的根本安全利益例外条款研究
发布时间：2019-05-29 09:40
【摘要】：保护国家根本安全利益的权利作为条约承诺的例外,已经在条约实践中建立起来。经济合作与发展组织(Organisation for Economic Cooperation and Development,简称经合组织OECD)投资协议、北美自由贸易协定(North American Free Trade Agreement,简称NAFTA)投资协议、一些双边投资条约和国际协定中都列入了明确的例外或排除性条款,以确保国家为了根本安全利益而采取行动。尽管国家加入了某一条约,但条约中的承诺不能阻止国家为了根本安全利益而采取措施。在国际投资立法中,关于根本安全利益例外的条款有多常见?他们的范围是什么?是如何来处理根本安全利益例外条款的?国家是否有权自行适用这些根本安全利益例外条款,即国家是否可以自行判定?在根本安全利益例外条款问题上是否有相应的习惯国际法?国际仲裁庭是如何解读根本安全利益例外条款的?中国对根本安全利益例外条款该如何把握?等等所有这些使得本文有了对国际投资法中根本安全利益例外条款进行研究的必要。 根本安全利益例外条款是二战后开始的美国友好、通商和航海条约的固定元素。在20世纪50年代后期,根本安全利益例外条款从早期的友好、通商和航海条约中移植到德国的双边条约中。第一个包括根本安全利益例外条款的投资条约是德国的第一个双边投资条约,即1959年的德国—巴基斯坦双边条约。根本安全利益例外条款几乎可以在这之后的每一个德国双边投资条约中找到。同样美国订立的第一个双边投资条约,即1982年美国—巴拿马双边投资条约也包含了根本安全利益例外条款。并且这之后美国的每一个双边投资条约都包含这个条款。 虽然双边投资条约成为学术界研究的热点,但双边投资条约中经常可见的根本安全利益例外条款并没有得到非常多的关注。然而,根本安全利益例外条款在国际投资法中是相对比较广泛传播的。这类条款在诸如德国、印度、比利时—卢森堡联盟、加拿大和美国的双边投资条约中频繁出现,在国际金融体系中起着重要的作用。这类条款在许多其他国家的特定的双边投资关系条约中也会偶尔出现。在目前发生效力的2000个左右的双边投资条约中,根本安全利益例外条款至少出现在其中的200个条约中。1 从更普遍的意义上来说,双边投资条约中根本安全利益例外条款的流行对国际投资法制度具有非常重要的影响。双边投资条约长久以来被认为是非常强有力的投资者保护的法律工具,它为跨界投资提供了深远的保护。例如,美国参议院对外关系委员会就断言,双边投资条约的首要目的就是鼓励和保护美国在发展中国家的投资。然而,根本安全利益例外条款的存在表明,那些保护不适用于处于极端风险中的国际投资例外或危机情况。 对双边投资条约的传统理解是,东道国承诺通过此条约不伤害外国投资者,或至少要承担费用,如果东道国如此做的话。根本安全利益例外条款起着风险分配的作用。它将例外情形下损害投资者的费用从东道国转移给投资者。在包括根本安全利益例外的双边投资条约下,东道国必须对平常环境下违反条约对投资者的损害进行赔偿。但在特殊的例外情形,如阿根廷金融危机情形下,根本安全利益例外条款将风险转移给了投资者,国家就有可能无须为违反双边投资条约所采取的措施负责。在一个比以往更全球化的世界中,各种例外情形都有可能包括进根本安全利益例外条款中,如金融危机、恐怖威胁、公共健康紧急情况等,都非常普遍,根本安全利益例外条款根本上限制着对外国投资者的保护制度。根本安全利益例外条款的解释和适用,对确定国家应对例外情形下的自由和根据双边投资条约赋予投资保护的范围有着非常关键性的作用。 本文将集中探讨阿根廷应对2000年至2002年经济危机所涉及的提交给ICSID仲裁庭的第一波仲裁裁决浪潮中的四个案例。阿根廷的系列案件对于投资者与国家之间的未来仲裁的重要性很难再被夸大了。阿根廷为应对经济危机所采取的保护公共秩序和安全,保护国家根本安全利益的措施是否是根据美国—阿根廷之间的双边条约第11条中规定的必需的不可阻止的措施?四个案件的仲裁庭对这个问题给予了直接回答。其中二个仲裁庭接受了阿根廷援引根本安全利益例外条款措施的必需性的抗辩,而另外二个仲裁庭却拒绝了阿根廷援引根本安全利益例外条款措施的必需性的抗辩。在基本相同的事实面前,其中的二个仲裁庭认定根本安全利益例外条款不能适用,并且判定阿根廷要为违反双边投资条约给投资者造成的损失负责。但另外二个仲裁庭却认定阿根廷援引根本安全利益例外条款是合理的,从而判定阿根廷无须为在经济危机情况下所必需的时期内对投资者造成的损害负责。这些仲裁庭不同的判决对根本安全利益例外条款的解释和适用提出了一个很重要的问题。根本安全利益例外条款究竟给予国家在危机情形下采取措施而不违反双边投资条约多少自由?双边投资条约的确像被人们认为的那样是一种保护投资者的强有力形势吗?在什么样的情形下,根本安全利益例外条款是可以被援引的?援引根本安全利益例外条款后,国家与投资者的责任与赔偿的后果是什么?最终,是国家还是投资者来承担国家应对例外情形下采取措施的风险与损失?这一系列的仲裁裁决值得关注。由于一系列的关于根本安全利益例外条款案件的出现,根本安全利益例外条款并不是纯粹的理论,而是具有重要的司法实践意义。 而BIT等国际投资协议中有关根本安全利益例外条款的规定,无论是对吸收海外投资的东道国,还是对投资者母国而言,它都是保护本国投资利益的重要内容,如何妥善规定该条款内容,是值得权衡的策略性选择。在这方面,阿根廷的教训也给我国双边投资条约等国际投资立法的完善提供了有益的借鉴。 本文从结构上来说,全文除了导言和结束语外,正文共分六章。 第一章国际投资法中的根本安全利益例外条款概述。该章分四节,其中,第一节论述了国际投资立法的新发展,第二节论述了根本安全利益例外条款的概念,第三节论述了根本安全利益例外条款的法理基础,第四节论述了国际投资法中援引根本安全利益例外条款的条件,第五节论述了根本安全利益例外条款的解释与应用的系统性影响。 第二章美国国际投资法中的根本安全利益例外条款。该章分三节。其中,第一节美国国际投资法中的根本安全利益例外条款概述,第二节美国国际投资法中的根本安全利益例外条款内容,第三节对美国国际投资法中根本安全利益例外条款的评价。 第三章NAFTA关于根本安全利益条款的理论与实践。该章分三节。其中,第一节NAFTA关于根本安全利益例外条款的规定,第二节NAFTA关于根本安全利益例外条款的司法实践,第三节对NAFTA根本安全利益例外条款的评价。 第四章欧盟国际投资法中的根本安全利益例外条款。该章分三节。其中,第一节欧盟国际投资法中的根本安全利益例外条款概述,第二节欧盟法院关于根本安全利益例外条款的司法实践,第三节对欧盟根本安全利益例外条款的评析。 第五章ICSID中根本安全利益例外条款的司法实践。该章分三节。其中,第一节ICSID关于根本安全利益例外条款案件类案不同判,第二节ICSID对四起案件类案不同判的理由,第三节ICSID根本安全利益例外条款案裁决的思考。 第六章中国国际投资法中的根本安全利益例外条款分析及中国对策建议。该章分三节。其中,第一节中国有关根本安全利益例外条款的缔约实践及价值,第二节中美双边投资协定(BIT)的谈判,第三节中国完善根本安全利益例外条款的对策建议。
[Abstract]:The right to protect the fundamental interests of the State as an exception to the treaty commitments has been established in treaty practice. The Organisation for Economic Cooperation and Development (OECD) investment agreement, the North American Free Trade Agreement (NAFTA) investment agreement, a number of bilateral investment treaties and international agreements have included explicit exceptions or exclusionary clauses, In order to ensure that the State takes action for the fundamental security interests. Despite the fact that the State had acceded to a treaty, the commitments under the Treaty could not prevent States from taking measures for the sake of fundamental security interests. How often are the provisions on the exception of fundamental security interests in international investment legislation? What is their range? How do I deal with the basic safety benefit exception clause? Does the State have the right to apply these fundamental security exception clauses on its own, that is, whether the State can decide on its own? Is there a corresponding customary international law on the question of the fundamental safety benefit exception clause? How does the international arbitral tribunal interpret the exception clause of the fundamental security interest? How to hold that exception clause for fundamental security benefit in China? All of these make this article necessary to study the fundamental safety benefit exception clause in the international investment law. The fundamental security interest exception clause is the fixing of American friendship, trade and navigation treaties that began after World War II Elemental. In the late 1950s, the fundamental security exception clause was transplanted from the early friendly, trade and navigation treaties to Germany's bilateral The first investment treaty, including the fundamental security exception clause, is the first bilateral investment treaty in Germany, which is the first bilateral investment treaty in Germany in 1959 The fundamental security interest exception clause can be applied to almost every German bilateral investment treaty after that The first bilateral investment treaty in the United States, the United States and Panama's bilateral investment treaty in 1982, also included an exception to the fundamental security interests The terms. And then every bilateral investment treaty in the United States includes this. Article. Although bilateral investment treaties have become a hot spot in academic research, the fundamental safety benefit exception clause that is often visible in bilateral investment treaties is not available There are many concerns. However, the fundamental security exception clause is relatively comparable in the international investment law Such provisions are widely disseminated in bilateral investment treaties, such as Germany, India, Belgium, Luxembourg, Canada and the United States, and play a role in the international financial system The important role of these provisions is also in the specific bilateral investment relationship treaties of many other countries It will occasionally appear. In the current 2000 bilateral investment treaties, the underlying security benefit exception clause is at least 200 in a treaty.1 from more In general, the prevalence of the fundamental security interests exception clause in the bilateral investment treaties is for the international investment law system There is a very important impact. Bilateral investment treaties have long been regarded as a very strong legal instrument for investor protection, which is a cross-border investment far-reaching protection is provided. For example, the United States Senate Foreign Relations Commission has asserted that the primary purpose of BITs is to encourage and protect the United States Investment in developing countries. However, the existence of the fundamental security exception clause indicates that those protections do not apply to international investment in extreme risk An exception or a crisis situation. The traditional understanding of BITs is that the host country is committed to not hurting foreign investors through this treaty, or at least at the expense of the host country If the host country does so, the fundamental security interest exception The terms play a role in the distribution of risks. It will, in exceptional circumstances, damage the cost of the investor Transfer from the host country to the investor. Under the bilateral investment treaties, including the fundamental security interests, the host country must be in breach of the treaty in the ordinary circumstances Compensation for damage to investors, but in exceptional exceptional circumstances, such as the Argentine financial crisis, the underlying security interest exception clause transfers the risk to the investor, and the State may not need to be in violation of bilateral investment The measures taken by the treaty are responsible. In a world that is more globalized than in the past, all exceptions may be included in the fundamental security exception clause, such as the financial crisis, the terrorist threat, the public health, The emergency and so on are very common, and the fundamental safety benefit exception clause is fundamentally limited The system of protection for foreign investors. The interpretation and application of the fundamental security interests exception clause is the case for determining the freedom of the State to deal with exceptional circumstances and the protection of investment in accordance with BITs. This paper will focus on the role of Argentina in the submission of the 2000-2002 economic crisis to the ICSID arbitral tribunal The four cases in the wave of a wave of arbitral awards. Argentina's series of cases are between the investor and the country The importance of the arbitration is very difficult to be overstated. Argentina's measures to protect public order and security for the economic crisis and to protect the fundamental interests of the State are based on article 11 of the bilateral treaties between the United States and Argentina The necessary and non-stoppable measures specified in the following: the secondary of the four cases The tribunal gave a direct answer to the question, in which the two arbitral tribunals had accepted the defence of the necessity of invoking the fundamental security interest exception clause in Argentina, while the other two arbitral tribunals had rejected Argentina's invocation of the fundamental safety interest A plea of the necessity of an exception clause. In the same facts, the two arbitral tribunals found that the fundamental security exception clause could not be applied and that Argentina would be in violation of bilateral investment The loss of a treaty to an investor is the responsibility of the investor, but the other two arbitral tribunals have found that Argentina's invocation of the fundamental security exception clause is reasonable in order to determine that Argentina need not be required to be in the context of the economic crisis In the period of time, the damage to the investors is the responsibility of the investors. The different decisions of these arbitral tribunals have an explanation of the exception of the fundamental security interests and the application of the basic safety benefit exception clause gives the State the measures to take measures in the context of the crisis And how much freedom is it not a violation of a bilateral investment treaty? The bilateral investment treaties do, as people think, Is it a strong situation to protect investors? Under what circumstances, it's essential A full-benefit exception clause can be invoked? After invoking the fundamental security benefit exception clause, the State and the vote What is the consequence of the liability and the compensation of the financier? In the end, it is the State or the investor to bear the national response Risk and loss of measures in the event of an out-of-case basis ? This series of arbitral awards is of great concern. The fundamental safety benefit exception clause is not a pure theory due to a series of occurrences of an exception clause on fundamental security interests It is not only the host country to absorb the overseas investment, but also the home country of the investor, it is the protection of the national investment benefit. What is the important content and how to properly set the rules The content of this article is a strategic choice that is worthy of trade-off. In this regard, the lessons of Argentina are also given to our bilateral investment treaties, etc. The improvement of international investment legislation provides a useful reference. This paper is from the structure In addition to the introduction and the concluding remarks, the text is divided into six chapters. The first chapter provides an overview of the exception clause of the fundamental security interests in the international investment law. The chapter is divided into four sections, in which section I discusses the new development of the international investment legislation, and the second section discusses the basic safety benefit exception clause. In the third section, the legal basis of the exception clause of the fundamental safety benefit is discussed in the third section, and the conditions for invoking the basic safety benefit exception clause in the international investment law are discussed in the fourth section. The explanation and the systemic effect of the basic safety benefit exception clause the second The fundamental security interest exception clause in the United States international investment law. This chapter is divided into three sections, in which the first section provides an overview of the fundamental security interest exception clause in the U.S. international investment law, section II, the basic safety benefit exception clause in the U.S. international investment law III. Comments on the exception of the fundamental security interests in the United States international investment law Price. 3. The theory and practice of NAFTA on the fundamental safety benefit clauses. The chapter is divided into three sections, in which, the first part of NAFTA is related to the provisions of the basic safety benefit exception clause, and the second section NAFTA is about the basic safety benefit exception. The judicial practice of the section, Section III, the fundamental safety benefit of NAFTA Evaluation of the external terms Chapter IV The fundamental security interest exception clause in the European Union's international investment law. This chapter is divided into three sections, in which section I of the European Union International Investment Law provides an overview of the fundamental security interest exception clause, section II of the European Union Court of Justice on the fundamental safety The judicial practice of the all-interest exception clause, and the third section is the fundamental security interest of the EU Comments on the exception clause Analysis. Chapter 5 Judicial practice of the exception clause of the fundamental safety benefit in ICSID. This chapter is divided into three sections, in which, the first ICSID is different from the case class case of the fundamental safety benefit exception clause, and the second ICSID is four The reason for the different judgment of the case case, and the case of the exception clause of the fundamental safety benefit of the ICSID in Section III Think about it. Chapter VI The Analysis of the Basic Security Interests and the Suggestions on China's Countermeasures in China's International Investment Law. This chapter is divided into three sections. In this section, the first section is the first section of China's practice and value of the exception clause of the fundamental security interests, and the second section
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D996.4
本文编号：2487838
[Abstract]:The right to protect the fundamental interests of the State as an exception to the treaty commitments has been established in treaty practice. The Organisation for Economic Cooperation and Development (OECD) investment agreement, the North American Free Trade Agreement (NAFTA) investment agreement, a number of bilateral investment treaties and international agreements have included explicit exceptions or exclusionary clauses, In order to ensure that the State takes action for the fundamental security interests. Despite the fact that the State had acceded to a treaty, the commitments under the Treaty could not prevent States from taking measures for the sake of fundamental security interests. How often are the provisions on the exception of fundamental security interests in international investment legislation? What is their range? How do I deal with the basic safety benefit exception clause? Does the State have the right to apply these fundamental security exception clauses on its own, that is, whether the State can decide on its own? Is there a corresponding customary international law on the question of the fundamental safety benefit exception clause? How does the international arbitral tribunal interpret the exception clause of the fundamental security interest? How to hold that exception clause for fundamental security benefit in China? All of these make this article necessary to study the fundamental safety benefit exception clause in the international investment law. The fundamental security interest exception clause is the fixing of American friendship, trade and navigation treaties that began after World War II Elemental. In the late 1950s, the fundamental security exception clause was transplanted from the early friendly, trade and navigation treaties to Germany's bilateral The first investment treaty, including the fundamental security exception clause, is the first bilateral investment treaty in Germany, which is the first bilateral investment treaty in Germany in 1959 The fundamental security interest exception clause can be applied to almost every German bilateral investment treaty after that The first bilateral investment treaty in the United States, the United States and Panama's bilateral investment treaty in 1982, also included an exception to the fundamental security interests The terms. And then every bilateral investment treaty in the United States includes this. Article. Although bilateral investment treaties have become a hot spot in academic research, the fundamental safety benefit exception clause that is often visible in bilateral investment treaties is not available There are many concerns. However, the fundamental security exception clause is relatively comparable in the international investment law Such provisions are widely disseminated in bilateral investment treaties, such as Germany, India, Belgium, Luxembourg, Canada and the United States, and play a role in the international financial system The important role of these provisions is also in the specific bilateral investment relationship treaties of many other countries It will occasionally appear. In the current 2000 bilateral investment treaties, the underlying security benefit exception clause is at least 200 in a treaty.1 from more In general, the prevalence of the fundamental security interests exception clause in the bilateral investment treaties is for the international investment law system There is a very important impact. Bilateral investment treaties have long been regarded as a very strong legal instrument for investor protection, which is a cross-border investment far-reaching protection is provided. For example, the United States Senate Foreign Relations Commission has asserted that the primary purpose of BITs is to encourage and protect the United States Investment in developing countries. However, the existence of the fundamental security exception clause indicates that those protections do not apply to international investment in extreme risk An exception or a crisis situation. The traditional understanding of BITs is that the host country is committed to not hurting foreign investors through this treaty, or at least at the expense of the host country If the host country does so, the fundamental security interest exception The terms play a role in the distribution of risks. It will, in exceptional circumstances, damage the cost of the investor Transfer from the host country to the investor. Under the bilateral investment treaties, including the fundamental security interests, the host country must be in breach of the treaty in the ordinary circumstances Compensation for damage to investors, but in exceptional exceptional circumstances, such as the Argentine financial crisis, the underlying security interest exception clause transfers the risk to the investor, and the State may not need to be in violation of bilateral investment The measures taken by the treaty are responsible. In a world that is more globalized than in the past, all exceptions may be included in the fundamental security exception clause, such as the financial crisis, the terrorist threat, the public health, The emergency and so on are very common, and the fundamental safety benefit exception clause is fundamentally limited The system of protection for foreign investors. The interpretation and application of the fundamental security interests exception clause is the case for determining the freedom of the State to deal with exceptional circumstances and the protection of investment in accordance with BITs. This paper will focus on the role of Argentina in the submission of the 2000-2002 economic crisis to the ICSID arbitral tribunal The four cases in the wave of a wave of arbitral awards. Argentina's series of cases are between the investor and the country The importance of the arbitration is very difficult to be overstated. Argentina's measures to protect public order and security for the economic crisis and to protect the fundamental interests of the State are based on article 11 of the bilateral treaties between the United States and Argentina The necessary and non-stoppable measures specified in the following: the secondary of the four cases The tribunal gave a direct answer to the question, in which the two arbitral tribunals had accepted the defence of the necessity of invoking the fundamental security interest exception clause in Argentina, while the other two arbitral tribunals had rejected Argentina's invocation of the fundamental safety interest A plea of the necessity of an exception clause. In the same facts, the two arbitral tribunals found that the fundamental security exception clause could not be applied and that Argentina would be in violation of bilateral investment The loss of a treaty to an investor is the responsibility of the investor, but the other two arbitral tribunals have found that Argentina's invocation of the fundamental security exception clause is reasonable in order to determine that Argentina need not be required to be in the context of the economic crisis In the period of time, the damage to the investors is the responsibility of the investors. The different decisions of these arbitral tribunals have an explanation of the exception of the fundamental security interests and the application of the basic safety benefit exception clause gives the State the measures to take measures in the context of the crisis And how much freedom is it not a violation of a bilateral investment treaty? The bilateral investment treaties do, as people think, Is it a strong situation to protect investors? Under what circumstances, it's essential A full-benefit exception clause can be invoked? After invoking the fundamental security benefit exception clause, the State and the vote What is the consequence of the liability and the compensation of the financier? In the end, it is the State or the investor to bear the national response Risk and loss of measures in the event of an out-of-case basis ? This series of arbitral awards is of great concern. The fundamental safety benefit exception clause is not a pure theory due to a series of occurrences of an exception clause on fundamental security interests It is not only the host country to absorb the overseas investment, but also the home country of the investor, it is the protection of the national investment benefit. What is the important content and how to properly set the rules The content of this article is a strategic choice that is worthy of trade-off. In this regard, the lessons of Argentina are also given to our bilateral investment treaties, etc. The improvement of international investment legislation provides a useful reference. This paper is from the structure In addition to the introduction and the concluding remarks, the text is divided into six chapters. The first chapter provides an overview of the exception clause of the fundamental security interests in the international investment law. The chapter is divided into four sections, in which section I discusses the new development of the international investment legislation, and the second section discusses the basic safety benefit exception clause. In the third section, the legal basis of the exception clause of the fundamental safety benefit is discussed in the third section, and the conditions for invoking the basic safety benefit exception clause in the international investment law are discussed in the fourth section. The explanation and the systemic effect of the basic safety benefit exception clause the second The fundamental security interest exception clause in the United States international investment law. This chapter is divided into three sections, in which the first section provides an overview of the fundamental security interest exception clause in the U.S. international investment law, section II, the basic safety benefit exception clause in the U.S. international investment law III. Comments on the exception of the fundamental security interests in the United States international investment law Price. 3. The theory and practice of NAFTA on the fundamental safety benefit clauses. The chapter is divided into three sections, in which, the first part of NAFTA is related to the provisions of the basic safety benefit exception clause, and the second section NAFTA is about the basic safety benefit exception. The judicial practice of the section, Section III, the fundamental safety benefit of NAFTA Evaluation of the external terms Chapter IV The fundamental security interest exception clause in the European Union's international investment law. This chapter is divided into three sections, in which section I of the European Union International Investment Law provides an overview of the fundamental security interest exception clause, section II of the European Union Court of Justice on the fundamental safety The judicial practice of the all-interest exception clause, and the third section is the fundamental security interest of the EU Comments on the exception clause Analysis. Chapter 5 Judicial practice of the exception clause of the fundamental safety benefit in ICSID. This chapter is divided into three sections, in which, the first ICSID is different from the case class case of the fundamental safety benefit exception clause, and the second ICSID is four The reason for the different judgment of the case case, and the case of the exception clause of the fundamental safety benefit of the ICSID in Section III Think about it. Chapter VI The Analysis of the Basic Security Interests and the Suggestions on China's Countermeasures in China's International Investment Law. This chapter is divided into three sections. In this section, the first section is the first section of China's practice and value of the exception clause of the fundamental security interests, and the second section
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D996.4
【引证文献】
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2 郝荻;;BITs中的基本安全利益例外与国际习惯法中的危急情况之比较[J];中国外资;2013年14期
相关硕士学位论文 前2条
1 陈安妮;中外BITs中的NPM条款研究[D];南京大学;2012年
2 刘先军;国际投资协定中的“根本安全利益”条款研究[D];广东商学院;2012年
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