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General Public Policy Exceptions in Investment Treaties and Jurisprudence of Investment Tribunals

Student: Vladislav Viriasov

Supervisor: Natalia Yerpyleva

Faculty: Faculty of Law

Educational Programme: Private International Law (Master)

Year of Graduation: 2020

This study aims to cover the aching issues of investment treaty drafting and consideration by the tribunals of investment disputes involving general public policy exceptions. In his study, the author confirms a steady trend towards the implementation of general public policy exceptions either drafted after the respective provisions of GATT and GATS or stick to autonomous prohibition and restriction-typed clauses. General exceptions are aimed to stretch the States’ public policy space and raise the bar of predictability of tribunal’s in cases involving public policy issues. The author also notes the lack of uniformity of treaty practices with regards to general exceptions, both globally and at the level on a particular State. Such lack of uniformity adversely impacts the way general exceptions are applied by investment tribunals. So far, there has been no conclusive answer to the question whether they should be treated as affirmative defenses (permissions) or as exclusions (scope limitation). The implications of the finding on the above pre-determine who is capable of raising general exceptions within proceedings and who bears the burden of proof, at what stage (being jurisdiction and merits) should such exceptions be raised, whether the award involving incorrect interpretation and/or application of general exceptions can be set aside under the existing rules, and whether they complement or substitute other defenses that a State may invoke in reliance on customary international law. All of the above concerns are currently left to be decided by the tribunals. Despite all of the suggested attempts, a proper analysis of general exceptions that may potentially serve as guidance for further interpretations was made in a mere two cases. In other instances, the tribunals came to conflicting conclusions or neglected general exceptions, where they should have been applied, at all. The approach whereby general public policy exceptions are treated as exclusions capable of restricting the application of primary obligations appears more beneficial to States, since it enables to avoid a declaration of breach, places the burden of proof on the claimant and, as a question of jurisdiction, may serve as grounds for setting aside of the award.

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