International Investment and National Security Review

By Ma, Ji | Vanderbilt Journal of Transnational Law, October 2019 | Go to article overview

International Investment and National Security Review


Ma, Ji, Vanderbilt Journal of Transnational Law


TABLE OF CONTENTS    I. INTRODUCTION                                              901  II. TWO TRENDS IN NATIONAL SECURITY AND INTERNATIONAL         907      INVESTMENT        A. Towards a Broad, Shared Meaning of National          907           Security        B. Towards a Self-Judging Nature of National            909           Security Measures III. EXAMINING NATIONAL SECURITY REVIEW IN THE ABSENCE OF      911      THE INTERNATIONAL INVESTMENT TREATY FRAMEWORK        A. The Convergence of National Security Review          912           Mechanisms in the Pre-Establishment Phase        B. Examining National Security Review in the            915           International Investment Pre-Establishment           Phase        C. Examining National Security Review in                917           International Investment in the Post-Establishment           Phase  IV. EXAMINING NATIONAL SECURITY REVIEW WITHIN THE             920      INTERNATIONAL INVESTMENT TREATY FRAMEWORK        A. Review of Non-Self-Judging Security                  920           Clauses           1. The Reviewability of Non-Self-Judging             921              Security Clauses           2. The Approaches for Necessity Test                 922        B. Review of Self-Judging Security Clauses              928           1. The Reviewability of Self-Judging                 928              Security Clauses           2. The "Good Faith" Standard                         931        C. Rejection of the "Good Faith" Standard               933           1. Risk of Abuse of the "Good                        933              Faith" Test           2. Ambiguity of "Good Faith" Standard                934           3. Interpretation of Self-Judging                    936              Clause   V. ALTERNATIVE OPTION FOR NATIONAL SECURITY REVIEW IN        938      THE INTERNATIONAL INVESTMENT LEGAL REGIME        A. International Tribunals' Calling for                 938           Compensation        B. The Advantages of Compensation Standard              939        C. The Calculation of Compensation                      942           1. The Distinction between Lawful                    942              Expropriation and Unlawful              Expropriation           2. Standard of Compensation                          944  VI. CONCLUSION                                                945 

I. INTRODUCTION

International investment agreements (IIAs) aim to protect and promote foreign investment by setting obligations for the host states. Investor--state arbitration has formed a part of the international investment legal regime for more than forty years. The first reported arbitral award was issued just twenty-nine years ago. (1) Today international investment has become the most important vehicle to bring goods and services to foreign markets, (2) and IIAs have grown considerably over the last decade. (3) According to the 2017 World Investment Report, thirty-seven new international investment agreements were concluded in 2016, resulting in 3,324 international investment agreements in total. (4) Sixty-two new investor--state dispute settlement cases were filed in 2016, resulting in 767 known IIA claims in total. (5) This fast development has generated serious systemic and legitimacy challenges. (6)

Foreign investment flowing into host states generally goes through two phases--the pre-establishment phase and the post-establishment phase. (7) Both phases potentially involve essential security issues. IIAs can grant rights to protected foreign investors only after they have been allowed into the territorial jurisdiction of the state. (8) When a bilateral investment treaty (BIT) is limited to the post-establishment phase, the host country retains the right to set specific entry requirements for foreign investors. (9) National legislation may provide discriminatory rules in relation to the admission of foreign investments. (10) Once they are admitted, however, foreign investments may not be subjected to discrimination, regardless of their country of origin. …

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