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Investor Presentaiton

44 INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL "Nothing in this Agreement shall be construed [so] as to prevent a Contracting Party from adopting, maintaining, or enforcing any measure that it considers appropriate to ensure that an investment activity in its territory is undertaken in accordance with the environmental law of the Party." 31 Another area that has been excluded from some recent treaties is of special relevance given the financial crises that many countries had gone through in the early 21st century. Specifically, a treaty may fully exclude, or narrow down, causes of action for claims relating to sovereign debt obligations, in order to limit State exposure to investor claims in case of debt default and/or restructuring.³ Thus, an annex to the Peru-Republic of Korea FTA (2011) provides "an investor of the other Party may not submit a claim under the ISDS Chapter that a restructuring of debt issued by a Party breaches an obligation under this Chapter (other than Article 9.3 or 9.4) [national treatment and most-favoured-nation treatment]." 32 In a somewhat similar fashion, many IIAs preserve the authority of host States to take acts essential to their national security interests. Some of those treaties make it clear that the national security provision is "self-judging": the State is entitled to take measures "it considers necessary" to preserve its essential security interests. Even confronted with such a clause, however, some tribunals have concluded that a State's action must be reviewed against the principle of good faith. Some agreements have sought to eliminate the possibility of the good-faith review too. For example, certain IIAS concluded by India expressly deprive tribunals of the power to review measures that are allegedly taken on national 31 32 See further UNCTAD, 2011e. This is often done by way of a "non-precluded-measures" clause, which usually states that nothing in the treaty precludes a State's resort to measures necessary for achieving certain objectives listed in the provision. See UNCTAD, 2009, pp. 96–109. UNCTAD Series on International Investment Agreements II
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