Investor Presentaiton
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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."
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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]."
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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
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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 IIView entire presentation