Reassessing State Consent in Investment Arbitration Vis-À-Vis Security Issues

This chapter explores the extent to which investment treaty exceptions can limit a tribunal’s jurisdiction to review measures pursuing security goals. Two major developments in international investment law increase the prospect of arbitral tribunals increasingly lacking the competence to review measures taken to safeguard security interests in the future. One refers to the changing paradigm of investment treaty design, with security exceptions revealing ever-increasing instances of deferential language to the host state. The other turns on the first known dispute dealing with a self-judging exception, with the tribunal having recently rendered its award in the proceedings. In the context of such developments, the main argument that we make is that a reassessment of state consent in regard to measures pursuing security objectives becomes necessary. In particular, we caution against the orthodox view of conceptualising security measures as acts that do not show any specific characteristics different than those that the majority of measures affecting foreign investors display. We argue that a historically aware approach to the tension between investment protection and the pursuit of security interests can better explain why, and how, security exceptions can have a jurisdictional impact. Finally, we also discuss those aspects in the context of armed conflict.