国投上到第七周，出现了一个不知道的概念，叫做“police power doctrine”, 居然还被Vinuales写成是习惯法概念之一。为什么在国内的时候老师都不教呢？
哦，因为我自己都没有选国投的课啊（怪谁）……这一年的课是两门国经（如果WTO也算国经），一门国私（如果英国国内商业法院和欧盟法也算国私的话——算的啦，毕竟forum selection, choice of law这种还是可以归于国私的），一门国公。
在开始学习这个新概念之前，要马克一下自己来剑桥以后的第一次主动被动缺课。这几天因为要保持跟余同学联系，每天都特别晚睡。于是今早的结果是完全在意料之中的不可避免的——睡过了。九点钟的课八点五十三才醒过来，虽然我已经设定了5个闹铃。这说明，对睡眠的需求才是世界上最大的不可抗力。原本打算趁着课中休息，第二节进去。结果骑车路上因为碰到熊孩子下课和莫名其妙的周五交通堵塞。是的，别看剑桥是小地方，机动车还是很多的，不时还有体积庞大的送货/邮箱货车停在路边（完全不可想象）。好了，我知道我应该早点出门的，但是我也想吃个体面的早餐啊。于是又差了2分钟到法学院，到G24的时候里面已经开讲了，CG的声音隐隐约约从里面传出来，百爪挠心。打算冲进去的时候看到门上贴着一张纸，上书：
“Class of Law of Armed Conflicts” in Process. DO NOT PULL ，Otherwise armed reponse.
【爸爸妈妈看这里：武装冲突法课程进行中， 不要推门 ，否则武力反击。】
赤裸裸的打脸和威胁！！！于是默默去图书馆自习吧。
结果Bartels发邮件过来说下周三的Workshop是moot court形式，我是NZ方第一个发言。结果材料里面什么Position都没有怎么说啊……而且本来约好的递签就要拖到12.2号了……千万别给我改了……诶……
人参就是这么苦涩。
没错，这就是我在法学院图书馆积满9杯咖啡换来的一杯免费咖啡。一年下来是不是都要咖啡因中毒了。
好了，回归正题。为IIL Study Group做的notes, 一篇论文就把我弄成这样……下周的WTO Workshop是模拟法庭形式的==简直要死了……
Vinuales - Customary Law in Investment Regulation
Main purpose
To explore sovereignty in investment regulation by anaylising the relationship between investment treaties and customary international law, which has been neglected by Institut de Droit International (IDI) resolution “Legal Aspects of Recourse to Arbitration by an Investor against the Authorities of the Host State under Inter-State Treaties” (http://icsidreview.oxfordjournals.org/content/29/3/701.extract).
Professor Vinuales thinks that the current trend towards including more regulatory leeway in specific treaty clauses is not appropriate solution because it still confines sovereignty to a few exceptions or at best carve-outs instead of recognizing that , much in the same way as the necessity defence does not need to be incorporated in a treaty to operate, the same is true of other customary expression of sovereignty.
Structure
- Discussion of how the interaction between investment treaties and CIL.
- Analysis of four customary concepts that may operate autonomously and in parallel to investment treaties.
- Display how excessive emphasis on treaties as a lex specialis may be subtly eroding the room for customary law investment regulation and thereby the legitimate expression of sovereignty.
Content
There are three ways in which CIL may apply together with investment treaties:
- Treaty interpretation; (IDI resolution implied)
- As governing norms superseding treaty provisions (either because of lex superior principle or potentially as a lex specialis, e.g. if two states have developed a bilateral custom on the application of a treaty); (IDI resolution implied)
- As governing norms supplementing treaty provisions for questions not addressed by the latter. (Vinuales suggests)
**Four concepts **in CIL:
1. Police power doctrine
*** Tecmed v Mexico: para. 109 “the principle that the state’s exercise of its sovereign powers of within the framework of its police power may cause economic damage to those subject to its powers as administrator without entitling them to any compensation whatsoever is undisputable.”
*** Methanes v US, para. 7: “as a matter of general international law, a non-discriminatory regulation for a public purpose, which is enacted in accordance with due process and, which affects, inter alios, a foreign investor or investment is not deemed expropriatory and compensable unless specific commitments had been given by the regulating government to the then putative foreign investor contemplating investment that the government would refrain from such regulation.”
*** Chemtura v Canada, para. 266: “The Tribunal considers in any event that the measures challenged by the Claimant constituted a valid exercise of the Respondent’s police powers. As discussed in detail in connection with Article 1105 of NAFTA, increasing awareness of the dangers presented by the lindane for human health and the environment. A measure adopted under such circumstances is a valid exercise of the State’s police powers and, as a result, does not constitute an expropriation.”
*** Saluka v Czech Republic, para. 262: “the principle that a state does not commit an expropriation and is thus not liable to pay compensation to a disposed alien investor when it adopts general regulations that are ‘commonly’ accepted as within the police powers of State’s forms part of customary law today.”
*** He considers the reference is useful because:
(1) this authority has been often referred to in subsequent arbitration awards as well as by the IDI discussion in expropriation;
(2) the reference to the police power doctrine is placed in the dispositiv part of the relevant claim other than merely a obiter dictum;
(3) the award was unanimously adopted by an eminent tribunal;
(4) the reasoning of the award on the relations between customary law and the applicable investment treaty is ambiguous. Therefore, it provides a starting-point for the analysis of how the understanding of this relationship may influence the operation of the police powers doctrine.
*** He notes that the Saluka tribunal seemed to suggest that the police power doctrine could only be applied if it had been incorporated into the applicable treaty (see Saluka para. 254), which is very debatable.
*** Problem with the Saluka reference: if the police power doctrine is CIL, its application doesn’t depend on a clause incorporating into the investment treaty, unless the treaty otherwise excludes it (lex specialis principle). A relevant customary norm may continue to apply to shape the applicable treaty provision – supplementary function.
**2. Necessity defence **
*** The overlapping part of emergency clauses (which excludes some matters from the scope of the treaty) and the necessity defence in CIL.
*** (Professor V considered it erred) CMS v Argentina (followed by two subsequent cases): the tribunal determined that:
a. The customary necessity defence is not applicable in the present case. Nevertheless, some conditions in the emergency clauses may be the same as those of the necessity defence in CIL.
b. Although the requirement was met, nothing in the treaty clause calls for the application of this requirement. (necessity still not applicable)
*** Opposite decision: LG&E v Argentina
*** Criticism towards the CMS award by an ad hoc commission mandated to review the award: the requirements under Art. XI are not the same as those under CIL as codified by Art. 25, as the Parties in fact recognized during the hearing. On that point, the Tribunal made a manifest error of law.
*** He argues that two disputable points regarding the CMS awards in the function of the necessity defence to interpret or supplement a treaty provision remain:
(1) the necessity defence was not relevant to interpret the emergency clause because they have different scopes of applications. (Necessity assumes a breach of international law exist, while the emergency clause is a threshold requirement.)
(2) a conflation of the treaty and customary requirements is an error of law concerning the actual content and operation of customary law.
*** Assuming the emergency clause can be properly characterized as an exception (not a carve-out, as Article XI), then the requirements of the necessity defence would still not applicable, either as interpretive guidance or as a supplement addressing matters left unaddressed by the clause. Why? Because application of such clause would amount to a restrictive interpretation of a treaty clause that expresses sovereignty, which would be inconsistent with the customary rule that limitation of sovereignty are not to be presumed.(See Wimbeldon, PCIJ, 24-25, Lotus, PCIJ, 18; Free Zones of Upper Savoy and the District of Gex, PCIJ, 167)
*** Even if this rule is not applicable, a conflation as such would be inconsistent with a neutral interpretation.
*** A proper application is to analyze the two norms separately. The customary necessity defence would operate autonomously according to its own requirements.
3. Countermeasures
Whether/how countermeasures in CIL can be excluded by NAFTA and the nature of investment protection standards
(1) NAFTA - ADM v Mexico: the tribunal reasoned that NAFTA chapter 11 neither authorised nor prohibited the use of countermeasures. Therefore, the customary regime on countermeasures remained applicable if certain conditions are met.
(2) Nature of investment protection standard - Corn Products v Mexico: countermeasures concerned inter-state relations and therefore cannot operate in an investor-state context.
*** However, the tribunal conversely admitted that if the same facts trigger an investment dispute and give rise to diplomatic protection, in which the countermeasure doctrine in CIL becomes applicable against the claim of the home state.
*** He considers that the distinction between obligation owed to other states and obligations owed to investors may not be a sufficient basis for excluding the operation of the doctrine of countermeasures. The inter-state character of the countermeasure doctrine does not necessarily exclude its operation from investor-state disputes.
4. Transnational public policy
Legality clause condition the protection afforded by the treaty to the legality of the investment under domestic law.
*** Legality clauses and the transnational public policy: the legality clauses are broader than the transnational public polity as many situations are illegal under the law referred to by the clause would not necessarily violates transnational public policy.
(1) Investment made illegally is not protected by the tribunal, which can reject the claim without proceeding to the merits. (initial illegality)
(2) Subsequent illegality can serve as a defence in the merits of the case
- Suggestion: the conducts prohibited by transnational public policy calls for the rejection of a claim before reaching the merits (in jurisdictional or admissible grounds).
Conclusion
- Customary international law (CIL) and investment treaties’ relationship is more complex than the assertion that investment treaties are lex specialis or special regime. Many cases demonstrated that resort to CIL is necessary and useful.
- Relationship between CIL and investment treaties can be divided into three ways: interpretive function; norms superseding investment treaties and norms supplementing investment treaties. While the IDI Resolution only dealt with the first two ways, Professor Vinuales disagreed with the Rapporteur on the way he framed the regulatory powers.
o He stressed that most of the CIL norms expressing sovereign character have no peremptory norm character and thus cannot supersede the investment treaties. Therefore, the supplementing function should be elaborated more. - Most expressions of sovereignty contained in CIL are broad and non-specific, amounting to general customary international law. Failure to identify the supplementing function of CIL in investment treaties may deprive such concepts of a proper role in foreign investment law.
o Four concepts have been analysed: police power doctrine, customary necessity defence, countermeasures and transnational policy. Their application in investment treaty arbitration is ambiguous and inconsistent.
我现在也大概能明白ZL当初在oxon的挣扎纠结。原来总以为自己不一样，不会那么难受。其实现在才明白，有一条线在那里，低于那条线的差距是可以忽略不计的。一句话就是，从表面上看，优秀的人总是相似的，但是差劲的人总是各自差劲。
天哪我怎么会说这种话！！！！真是抑郁到一个程度了！！！
抛一张在前几周去约克（唯二的出城）刚下车照的河景吧。