新冠疫情下国际投资中公共卫生例外条款分析

新型冠状病毒肺炎疫情的全球大规模流行影响了世界范围内的公众健康,也影响了国际投资的发展。东道国采取的疫情防控措施可能会因损害外国投资者的利益而被诉至国际投资仲裁庭。国际投资协定中起初鲜有公共卫生例外条款,而晚近的国际投资协定在序言及正文中开始包含一种或几种公共卫生例外以尊重东道国的公共卫生规制权。近年来,一些外国投资者依据老旧国际投资协定而提起的国际投资仲裁涉及公共卫生问题时,东道国不得不通过援引国家警察权力、紧急状态等规定对外国投资者提出的征收补偿或者违反公平公正待遇的主张进行抗辩。虽然东道国的这些抗辩得到了部分国际投资仲裁庭的支持,但其仍存在较大的不确定性。鉴于此,在国际投资协定中纳入明确的公共卫生例外条款对于保护东道国的公共卫生规制权具有重要意义。

Analysis of Public Health Exception Clauses in International Investment Agreements Under Covid-19 Epidemic

The large-scale global epidemic of covid-19 has affected the health of global residents, as well as the development of global investment. Those measures taken by the host countries to control the spread of covid-19 epidemic may affect the interests of foreign investors and then be sued to the international investment arbitration tribunals. Initially,there were few public health exception clauses in international investment agreements, but the preambles and clauses of recent agreements contain one or several kinds of exceptions to immune the host countries from compensation when implementing their public health regulatory rights. In recent years, some international investment arbitration cases have involved public health issues. The host countries have to resort to the power of the national police, the state of emergency or other provisions to defend against expropriation compensation and the violation of Fair and Equitable Treatment, because the involved investment agreements do not have public health exception clauses. Although these defenses of the host countries have been approved by some arbitration tribunals, there is inconsistent in practice. In view of this, to include clear public health exception clauses in investment agreements is of great significance for protecting the host countries’ rights of public health regulation.