The Frontiers of Society, Science and Technology, 2020, 2(7); doi: 10.25236/FSST.2020.020710.
LI Ke
Faculty of Law, University of Macau
In the international investment law, the “state of necessity” is invoked to preclude the wrongfulness of host states’ measures, no matter whether there is a “non-precluded measure” clause contained in the concerned BIT or not. Decisions on investor-state disputes against Argentina demonstrated a convergence in the application of the “sate of necessity” defence in international investment jurisprudence. Three conditions shall be fulfilled to overturn the “state of necessity” defence: (i) taking alternative measure would be consistent with BITs, (ii) alternative measure shall be in fact available when the measures challenged were taken, and (iii) the alternative measure would have yielded equivalent results/relief with the challenged measure. To exam the availability of alternative measures, the proportionality analysis is widely used by the tribunals. Although the common rule that the burden of proof rests upon the party asserting the affirmative is followed, the burden of proof on claimants is proved to be heavier if they want to overturn the “state of necessity” defence of the defendants.
Investment law, State of necessity, The proportionality analysis, The burden of proof
LI Ke. Recent Development on the Necessity Test in International Investment Law. The Frontiers of Society, Science and Technology (2020) Vol. 2 Issue 7: 31-34. https://doi.org/10.25236/FSST.2020.020710.
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