重大疫情防控措施的國際投資條約仲裁抗辯──以新冠疫情防控為對象

Defenses for Pandemic Prevention Measures in International Investment Treaty Arbitration - Focusing on Covid-19 Prevention Measures

新冠疫情引發了重大疫情防控措施在國際投資法下的合法性爭議，提出了國際投資條約仲裁的抗辯問題。各國基於投資條約承擔了廣泛的投資保護義務，各國疫情應對措施可能被外國投資者指控違反投資條約義務，並被提起國際仲裁。各國可以基於投資條約和習慣國際法進行抗辯，主張其疫情應對措施不違反公平與公正待遇、充分保護與安全、間接徵收與補償等義務，符合投資條約一般例外、安全例外等例外，或者符合習慣國際法上的治安權和緊急情况等要求。新冠疫情具有突發性和緊急性，其傳播和防控在科學上具有不可預見性和不確定性，給各國及其人民造成了極其嚴重的公共衛生乃至更廣泛的挑戰和危機，嚴重威脅各國乃至整個人類的生存和安全。投資條約仲裁庭必須審慎考量這些特殊複雜因素，並給予東道國疫情應對措施更大的尊重。只要東道國疫情應對措施不是非常明顯地不合理、歧視、違反正當程序或違反比例原則，就不違反投資條約義務，就不承擔國家責任。反之，其抗辯則不應得到支持。

The Covid-19 has triggered debates over the legality of major epidemic prevention and control measures under international investment law and raised issues of defenses for such measures in international investment treaty arbitration. Countries have undertaken a wide range of investment treaties obligations and may be accused of violating such obligations by foreign investors and may be subject to international arbitration. Countries can defend themselves based on investment treaties and customary international law, arguing that their epidemic response measures do not violate obligations such as fair and equitable treatment, full protection and security, indirect expropriation and compensation, and can be justified on various exceptions under investment treaties and customary international law, such as general exceptions, essential security exceptions, police powers and necessity. The Covid19 is sudden and urgent, and its spread and prevention and control are scientifically unpredictable and uncertain, causing extremely serious public health and even broader challenges, threats and crises to countries and their people, and even to their survival and security. The investment treaty arbitration tribunal must carefully consider special complex factors and give host country greater deference for the epidemic response measures. As long as the host country's response to the epidemic is not very obviously unreasonable, discriminatory, violating due process, or violating the principle of proportionality, it does not violate investment treaty obligations and does not assume state responsibility. Conversely, its defense should not be supported.