Hostname: page-component-5c6d5d7d68-wtssw Total loading time: 0 Render date: 2024-08-14T14:54:46.244Z Has data issue: false hasContentIssue false
  • English
  • Français

Litigating Health and Security Exceptions in Investment Treaties: A Simulation

Published online by Cambridge University Press:  03 March 2022

J. Benton Heath ,
Ina Popova ,
Justin Jacinto ,
Samaa Haridi ,
Tafadzwa Pasipanodya  and
Sabina Sacco
Get access Rights & Permissions [Opens in a new window]

Extract

J. Benton Heath introduced the topic. Essential security interests clauses have been invoked in a handful of cases, including several cases arising out of the Argentine debt crisis and the twin cases brought by Deutsche Bank and CC/Devas against India relating to satellite frequencies, with mixed outcomes and reasoning. In several treaties, these clauses also refer to public health measures, but there is little guidance on how such clauses should be interpreted or applied. Using a fictional but realistic scenario, the advocates and tribunal members—playing assigned roles—were asked to consider whether public health exceptions are self-judging, whether they deprive a tribunal of jurisdiction or go to the merits, and what showing is required for the clause to apply. The scenario also raised broader doctrinal questions about the nature of exceptions in investment treaties, their relationship with the treaty's primary obligations, and the interrelationship between security clauses and the customary international law defense of necessity.

Type
Litigating Health and Security Exceptions in Investment Treaties: A Simulation
Information
Proceedings of the ASIL Annual Meeting , Volume 115 , 2021 , pp. 151 - 154
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of The American Society of International Law.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

This panel was convened at 11:15 a.m., Thursday, March 25, 2021, by its moderator, J. Benton Heath, Assistant Professor at Temple University Beasley School of Law. Structured as a mock hearing, advocates Ina Popova of Debevoise & Plimpton LLP and Justin Jacinto of Curtis, Mallet-Prevost, Colt & Mosle LLP argued claimant's and respondent's position, respectively, before a tribunal composed of Samaa Haridi of Hogan Lovells LLP, Tafadzwa Pasipanodya of Foley Hoag LLP, and Sabina Sacco of Sabina Sacco Arbitration LLC.

References

1 Each advocate and tribunal member was assigned a position to argue, which did not necessarily represent his or her own views or that of their firm. The authors would like to thank Alma M. Mozetič for her assistance with the preparation of the article.

2 Columbus Ale House, Inc. v. Cuomo, 495 F. Supp. 3d 88 (E.D.N.Y. Oct. 15, 2020).

3 Methanex Corporation v. United States of America, Final Award of the Tribunal on Jurisdiction and Merits (UNCITRAL Aug. 3, 2005).

4 Philip Morris v. Uruguay, ICSID Case No. ARB/10/7, Award, para. 336 (July 8, 2016).

5 CC/Devas v. India, PCA Case No. 2013-09, Award on Jurisdiction and Merits, para. 219 (July 5, 2016) (Mauritius-India BIT).

6 Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment, 2008 ICJ Rep. 177 (June 4) (Article 2(c) of the Convention concerning Judicial Assistance in Criminal Matters); Panel Report, Russia – Measures Concerning Traffic in Transit, paras. 7.65, 7.82, WTO Doc. WT/DS512/R (adopted Apr. 5, 2019) (Article XXI(b) of GATT); Panel Report, Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights, WTO Doc. WT/DS567/R (adopted June 16, 2020) (Article 73(b)(iii) of TRIPS); CC/Devas v. India, PCA Case No. 2013-09, Award on Jurisdiction and Merits, para. 245 (July 25, 2016); The North American Free Trade Agreement Implementation Act, Statement of Administrative Action, ch. 21 (“National Security”), at 217 (1993), available at https://ustr.gov/sites/default/files/uploads/Countries%20Regions/africa/agreements/nafta/NAFTA%20Chapter%20Summaries.pdf.

7 Panel Report, Russia – Measures Concerning Traffic in Transit, para. 7.100, WTO Doc. WT/DS512/R (adopted Apr. 5, 2019).

8 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, para. 222 (June 27); Case Concerning Oil Platforms (Iran v. U.S.), Preliminary Objection, 1986 ICJ Rep. 803, para. 20 (Dec. 12); Case Concerning Oil Platforms (Iran v. U.S.), Merits, 2003 ICJ Rep. 161, para. 78 (Nov. 6); Certain Iranian Assets (Iran v. U.S.), Preliminary Objections, 2019 ICJ Rep. 7, para. 45 (Feb. 13); Alleged Violations of the 1955 Treaty of Amity (Iran v. U.S.), Judgment, para. 110 (Int'l Ct. Just. Feb. 3, 2021); Panel Report, Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights, para. 7.4.3, WTO Doc. WT/DS567/R (adopted June 16, 2020); Tribunal Fédéral, Arrêt du 11 décembre 2018, 4A 65/2018, para. 3.2.3.3.3.

9 CC/Devas v. India, PCA Case No. 2013-09, Award on Jurisdiction and Merits, paras. 291–95, 371–73 (July 25, 2016).