Missing in Action: General Public Policy Exceptions in Investment Treaties »
Wolfgang Alschner, Kun Hui
This chapter scrutinizes the effectiveness of state-led treaty-design reform by investigating the impact of general public policy exceptions on investment jurisprudence through recent cases rendered under IIAs that contain such clauses. It first defines the term ‘general public policy exception’. Second, the chapter shows empirically that investment treaties increasingly contain general public policy exception clauses and introduces a typology of these provisions. The chapter next describes several ways in which such exceptions may be interpreted while arguing that whatever interpretation one favours, customary rules of treaty interpretation require an active engagement with the new exception language. Furthermore, this chapter systematically analyses how tribunals have assessed general public policy exceptions in recent cases and shows that jurisprudence has yet to seriously engage with these clauses. To conclude, the chapter provides recommendations on how this greater engagement can be achieved so that state-driven treaty design reform becomes more effective in guiding investment law’s evolution.