Yi Tang on General Public Policy Exceptions in International Investment Agreements (IIAs): Opportunities and Challenges in Times of Global Health Crisis (AJWH)

"General Public Policy Exceptions in International Investment Agreements (IIAs): Opportunities and Challenges in Times of Global Health Crisis"
Yi Tang (PhD Candidate)
Asian Journal of WTO & International Health Law and Policy
Published online: Oct 2024

Abstract: This article delves into the efficacy of general public policy exceptions within International Investment Agreements (hereinafter “IIAs”) against the backdrop of the unprecedented global health crisis precipitated by the COVID-19 pandemic. By empirically surveying the use of general public policy exceptions in IIAs, the research highlights a discernible trend towards the incorporation of such exceptions in new-generation IIAs, aimed at reconciling investment protection with the host state’s regulatory autonomy for public welfare. However, the examination of arbitral jurisprudence reveals the tribunals’ challenges in coherently and effectively applying these exceptions, often resulting in outcomes that diverge from the contracting states’ expectations and the objectives underlying these treaty innovations. This analysis is particularly important and timely in the context of the COVID-19 crisis, where the potential surge in investor-state disputes arising from pandemic-related regulatory measures poses pressing questions about the efficacy and scope of general public policy exceptions. However, the prevailing uncertainties in arbitral interpretations may cast a significant shadow on the prospective utility of these exceptions. In light of these challenges, this article calls for a holistic reform of IIAs and a recalibration of arbitral practice, advocating for enhanced engagement with World Trade Organization (hereinafter “WTO”) jurisprudence and the provision of explicit clarifications within IIAs to ensure that general public policy exceptions fulfil their intended purpose.

Please click here to view the full article on SSRN.

New Issue: SSRN Legal Studies Research Paper Series (HKU)

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES  DOUGLAS W. ARNER, EDITOR SIMON N. M. YOUNG, EDITOR

Vol. 7, No.5: Sept 12 2017 Table of Contents

1. Transparency of Information in the Market: The Citic Case Before the Market Misconduct Tribunal
Syren Johnstone, Department of Law, University of Hong Kong, Asian Institute of International Financial Law
Nigel Davis, University of Hong Kong

2. Diverging Trends in the Socialist Constitutionalism of the People's Republic of China and Socialist Republic of Vietnam
Fu Hualing, The University of Hong Kong - Faculty of Law
Jason G. Buhi, Peking University School of Transnational Law, The University of Hong Kong Faculty of Law

3. Armed Conflict and State Succession in Investor-State Arbitration
Odysseas G. Repousis, Quinn Emanuel Urquhart & Sullivan LLP
James D. Fry, The University of Hong Kong - Faculty of Law

CL Lim Speaks at the Mega-regulation after TPP Conference in Tokyo

CL Lim recently spoke at the Megaregulation after TPP Conference organised by NYU's Institute for International Law and Justice in cooperation with the United Nations University and the National Institute for Policy Studies.  The conference was held in Tokyo from 24-25 November 2016.

Professor Lim spoke on Investor-State Dispute Settlement on panel chaired by Annelise Riles.  Earlier this year, Professor Lim's co-edited 2012 book, The Trans-Pacific Partnership: A Quest for the Twenty-first Century Trade Agreement (originally published by Cambridge University Press) was translated and published in Chinese.  The book is published by Law Press China.

CL Lim to Deliver Keynote at 2016 IBA Conference in Washington (21 Sept)

Professor CL Lim will be delivering a keynote speech at this year's International Bar Association's annual conference in Washington DC, from 18 to 23 September 2016. The session is titled "Lessons learned and looking ahead: 30 years of investment arbitration in Asia". The programme describes the session as follows:

This year’s Asia Pacific Arbitration Group session focuses on investment arbitration. It is 30 years since the first investment arbitration under a bilateral investment treaty (BIT) was initiated against Sri Lanka in 1987. During that time the international law protections offered to foreign investors under BITs and multilateral conventions have become both an important policy tool for host states in attracting investment, while also raising domestic political concerns about the preferential treatment of foreign investors and the impact of claims in response to governmental regulation of domestic economies. The speakers on this panel will share their views and advice on the experience of different Asia Pacific countries facing investor-state claims and look ahead to the future of investment arbitration in the region in light of the recently concluded Trans- Pacific Partnership.

Following the speech, a panel of speakers including Kap-You (Kevin) Kim (South Korea), Pallavi Shroff (India) and May Tai (Hong Kong) will discuss the issues.

Armed Conflict and State Succession in Investor-State Arbitration (Columbia J Eur L)

"Armed Conflict and State Succession in Investor-State Arbitration"
Odysseas G Repousis (PhD Candidate) and James Fry
Columbia Journal of European Law
Summer 2016, Vol. 22, Issue 3, pp. 421-449

Abstract: The topics of armed conflict and annexation have to date not attracted much attention when it comes to international investment law and investor-state arbitration. However, a series of recent events, ranging from investment claims under Soviet and Yugoslav investment treaties to claims against Russia for investments in Crimea, has drastically altered the importance of the law of state succession in investor-state arbitration. Furthermore, the Ukrainian crisis of 2014, also provides the medium for an examination of the impact of armed conflict on international investment law. As of the writing of this article, eight claims have been filed by Ukrainian investors against Russia under the Russia- Ukraine bilateral investment treaty (BIT), over the alleged breach of their investments in Crimea. For its part, Russia has decided not to participate in the proceedings. Regardless, these claims bring about significant questions with respect to the law of state succession in general and the application of Russian investment treaties to Crimea in particular. Furthermore, it has to be examined whether armed conflicts can affect the operation of investment treaties, and in particular, whether the conflict in Crimea left the operation of Russian and Ukrainian investment treaties intact or suspended the operation of such treaties. Setting out from these questions, this article provides the foundational elements on the importance of the impact of armed conflict and the law on state succession on investor-state arbitration.  Accessible on LexisNexis or contact the authors.