| One of the most important purposes of International investment law is encouraging and protecting foreign investors, however the overemphasis on the interests of investors has resulted in a thorny issue of how to balance interests of private investors on the one hand, and of host countries on the other hand. An international investment treaty always refers to host countries in relating to their responsibilities, while refers to private investors in relating to their rights. Meanwhile, the international dispute settlement institutions prefer to rule in investors’ favor. The 2002 Argentina crisis served as a wake-up for people to rethink the necessity to rebalance interests between host countries and private investors, no country would like to see investors’ private interests overriding its public concerns. Especially in the field of international energy investment, which not only involves old and new energy field,but also relates to complex considerations of a host country, such as energy safety,environment protection and public health, etc. Thus, the author argues that, based on the unbalance of interests between host countries and private investors in international energy field, to reaffirm host countries’ energy sovereignty, to ensure reasonable regulatory power of host countries is of substantial importance. Nowadays, threats are increasingly common, like terrorism, economic crisis, public health emergencies, environmental disasters, etc. To attach great attention to NPM provisions will be of great importance to balance interests of host countries and private investors.Non-Precluded Measures Provisions( NPM) confers host nation with necessary regulatory power under exceptional circumstances, such as national security, essential interests, environment protection, etc. In such case, measures taken by the host countries that violate treaty obligations will be exempted. The nature of NPM provisions is to redistribute the risk between private investors and host countries. In the meanwhile, NPM provisions also prevent abuse of the terms by host countries, and provide reasonable expectations for investors. To some extent, the NPM provison shows double protection for interests of both host countries and investors. In the field of energy Investment, Energy Charter Treaty is worthy studying for its significance. Due to the lack of international harmonization of energy investment agreements, bilateral investment treaties(BIT) have become important basis forthe settlement of investment disputes. Therefore, research on the NPM provisions in perspective of BITs make senses from the viewpoint of energy investment.The first part are basic theory of NPM provisions and its particularity in energy investments, which are preparations for below. The second part analyses the ECT and the US and Germany BIT provisions, focusing on the NPM provisions in energy investment, which may provides beneficial reference for such provisions in China BIT. The third part analyzes difficulties in the application of NPM provisions, such as inconsistent interpretation methods,uncertain review standards and inconsistent legal consequences. The fourth part reviews and analysis jurisprudence in ICSID arbitrations concerning NPM provisions in BIT, intending to find a way to cope with the foregoing difficulties. The fifth part trying to provide solutions of how to perfect the NPM provisions in China BITs, such as shaping the provision content,making scientific arrangement, and confirming definitions of the NPM provision.The difficulties in applying NPM provisions conclude inconsistency in interpreting methods, reviewing standards and application results. Interpretation of the NPM provisions should comply with the rules of interpretation of Article 31 and 32 of the Vienna Convention on the Law of Treaties. As to the NPM provisions of self-judgment nature, Good faith principle in Article 26 of Vienna Convention should be applied in reviewing whether the host countries deal with the crisis honestly, and whether measures taken by host countries are reasonable or necessary. As to the non-self judge natural of NPM Provisions, Margin of appreciation doctrine stems from the European Court of Human Rights could be applied.The arbitration should take in to consideration of variant regulations in domestic law of host countries in confirming its application boundaries of NPM provisions, and give due respects to different domestic regulations of host countries. Principle of good faith and margin of appreciation doctrine may solve review difficulties in applying NPM provisions clauses, this could be regarded as a solution to effective coordination of interests between investors and host countries. Given the double functions of the NPM provisions, host countries shall be exempted from responsibilities of compensating investors’ lose while the measures taken by the host country qualify requirements in NPM provisions. In the meantime, it is necessary to searching possible paths to protecting interests of investors in such a case. |
