The protection of national security in IIAs / United Nations Conference on Trade and Development.
2009
K3830 .P76 2009 (Map It)
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Items
Details
Title
The protection of national security in IIAs / United Nations Conference on Trade and Development.
Published
New York : United Nations, 2009.
Call Number
K3830 .P76 2009
ISBN
9789211127720
9211127726
9211127726
ISSN
1814-2001
Description
xx, 157 pages ; 21 cm.
System Control No.
(OCoLC)457128068
Note
"UNCTAD/DIAE/IA/2008/5."--p. iii
"Sales number: E.09.II.D.12."--p. iii.
"Sales number: E.09.II.D.12."--p. iii.
Bibliography, etc. Note
Includes bibliographical references (pages [139]-141).
Record Appears in
Government Document Classification Number
UNCTAD/DIAE/IA/2008/5
Portion of Title
Protection of national security in international investment agreements
Added Corporate Author
Table of Contents
Preface
Executive Summary
Introduction
1
I
Explanation Of The Issue
7
A
The evolving concept of national security from countering military threats to tackling economic crisis and protecting strategic industries
7
1
Economic crisis
8
2
Protection of strategic industries
10
a
Definition of "strategic industries"
15
b
Against whom is protection sought?
17
c
Threshold for invoking national security interests
24
B
The role of IIAs
25
1
The need to balance conflicting interests
25
2
The distinction between the pre- and the post-establishment phases of an investment
27
a
National security interests and the entry of foreign investors
28
b
National security interests and post-establishment treatment of foreign investors
30
3
National security interests and the "denial of benefits" clause
32
4
IIAs and customary international law
34
C
Main policy issues concerning the protection of national security interests
37
1
The degree of autonomy of Contracting Parties in invoking a security-related exception
38
a
Self-judging clauses
39
b
Non self-judging clauses
41
2
The effects of a security-related exception
43
3
Sovereign wealth funds as protected investors
43
D
International jurisprudence and national security
44
1
International Centre for Settlement of Investment Disputes (ICSID)
45
a
Relationship between the treaty exception and the necessity defence under customary international law
46
b
Economic crisis covered by the exception clause
49
c
Self-judging exception?
49
d
Compensation
50
2
World Trade Organization/General Agreement on Tariffs and Trade
51
a
Interpretation of "public morals" and "public order"
52
b
Necessity of the measure
53
c
Self-judging nature
54
3
European Court of Justice
56
4
North American Free Trade Agreement (NAFTA)
59
5
Conclusion
59
II
Stocktaking And Analysis
71
A
The use of the term "essential security interests" and related terms used in IIAs
72
1
"Essential security interests" and "national security"
72
2
Other terms used
74
a
Public order
74
b
Extreme emergency
76
c
Public morals
77
d
International peace and/or security
78
e
Measures related to the production, trade and development of arms and other defence material
80
B
Conditions for invoking a security-related exception in IIAs
81
1
No arbitrary or unjustifiable discrimination
81
2
Disguised restriction of investment or trade
83
3
Listing of cases in which there may be a threat to "essential security interests"
85
4
Conformity with other international rules
89
5
Necessity of the host country response
90
a
Self-judging clauses
91
b
Necessity as objective precondition
92
c
No reference to "necessity"
94
d
Exclusion of judicial review
95
C
Security-related exceptions in relation to specific IIA provisions
96
1
Specific exception clause as an alternative to a general clause
96
a
The right of establishment
96
b
Non-discrimination
98
c
Transfer of funds
99
d
Investor-state dispute settlement
100
2
Specific security exception in addition to a general clause
102
a
Transparency
102
b
Entry of business visitors
104
D
Non-applicability of a security-related exception with regard to individual IIA provisions
105
III
Interaction With Other Issues And Concepts
111
IV
Policy Options In Respect Of The Protection Of National Security In IIas
119
A
No exception related to national security
119
B
Clarification of the term "essential security interests"
121
C
Necessity of the host country response
125
1
Self-judging clause
125
2
Non-self-judging clause
127
D
Additional means of limiting the scope of application of a security-related exception
129
1
Introducing a "good faith" requirement
129
2
National security exception only in respect of certain IIA provisions
130
3
Non-applicability of the national security exception in respect of certain IIA provisions
131
4
Periodic review of the measure
132
Conclusion
135
References
139
Selected UNCTAD Publications On Transnational Corporations And Foreign Direct Investments
143
Questionnaire
155