Investor Presentaiton

45 33 security grounds. Thus, Article 6.12 of the India-Singapore Comprehensive Economic Cooperation Agreement (2005) entitles each Contracting Party to derogate from any investment protection obligation by taking actions which the Party considers necessary for the protection of its essential security interests. A special annex to the Investment chapter further provides that when a respondent State invokes the security exception to justify the measure being challenged by the claimant, a tribunal cannot question the validity of this invocation: "Annex 5. Non-justiciability of Security Exceptions 1. The Parties confirm the following understanding [...]: (a) in respect of disputes submitted to arbitration [...], where the disputing Party asserts as a defence that the measure alleged to be a breach is within the scope of a security exception as set out in Article 6.12 of the Agreement, any decision of the disputing Party taken on such security considerations shall be non-justiciable in that it shall not be open to any arbitral tribunal to review the merits of any such decision, even where the arbitral proceedings concern an assessment of any claim for damages and/or compensation, or an adjudication of any other issues referred to the tribunal." (Emphasis added). It follows from this formulation that any measure falling within the scope of the security exceptions, as outlined in Article 6.12, is immune from being questioned by a tribunal. The intent of the 33 This is also true of recent United States IIAS. The Peru-U.S. FTA contains a footnote to its essential security provision that says, "For greater certainty, if a Party invokes Article 22.2 in an arbitral proceeding initiated under Chapter Ten (Investment) or Chapter Twenty-One (Dispute Settlement), the tribunal or panel hearing the matter shall find that the exception applies." UNCTAD Series on International Investment Agreements II

View entire presentation