CONFIDENTIAL DAFFE/MAI(97) 1/REV2

VI. EXCEPTIONS AND SAFEGUARDS

GENERAL EXCEPTIONS

Paragraph I

1. It has been proposed that the general exceptions provisions not be applicable to all of the

obligations under the agreement. The ECT (Article 24(1)) is an example of a multilateral agreement that

does not allow for general exceptions to be taken with regard to specific obligations concerning

compensation for losses or expropriation. Bilateral treaty practice differs on this matter. Some delegations

thought that a reference to paragraph 2(c) would be necessary to clarify that actions pursuant to a UN

Charter obligation would in any case prevail over the MAI (see paragraph 9, below)., The Austrian

delegation submitted a proposal which would have the same effect by changing the order of the

paragraphs.

2. The question is whether certain obligations of the agreement are considered so central to investor

protection, for example compensation in case of expropriation, that a provision should limit the right of a

Contracting Party to invoke this Article for actions that would be inconsistent with its obligation to pay

compensation in the case of an expropriation.

3. The majority view was that the MAI should provide an absolute guarantee that an investor will

be compensated for an expropriated investment. This was questioned by the United States delegation

which doubted that in time of war whether a country would be able to pay compensation, in all cases, to an

investor of a party with which it is in conflict. In the case that general exceptions would be permitted to

override MAI obligations, delegations might further consider whether this should be limited to only

essential security interests.

4. One delegation raised the issue of the need to ensure that this provision would not apply

retroactively. Delegations pointed to customary international law rules limiting retroactive application of

treaties. They agreed this was a valid point, but that it applied more generally to the entire agreement and

should be addressed elsewhere.

Paragraph 2

subparagraph a

l. Canada, supported by other delegations, requested square brackets be put around the phrase

"which it considers" in the chapeau, as well as brackets around the phrase "or other emergency in

international relations" at the end of (i). In the opinion of these delegations, these proposals would help

safeguard against potential abuse by constraining the selfjudging nature of the provision and by limiting

its scope. One delegation believes that, based on an ICJ decision, such a change would eliminate the self-

judging nature of the provision.

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2. There were different views on whether to delete the phrase "including those" in the chapeau,

which would make the list a closed one. Recent agreements like the NAFTA. the ECT, the GATS, and the

Shipbuilding agreement do not define essential security interests but provide elements clarifying the

purpose of the provision. The Austrian Delegation thought that in a closed list it would also be necessary

to amend element (ii) (by inserting the phrase "inter alia" after the word 'non-proliferation") to cover

international non-proliferation agreements, other than those relating to nuclear weapons for example

agreements concerning chemical weapons. Denmark, supported by other delegations, proposed the

inclusion of an additional element (iii).

-- subparagraph b

3. This provision is found in recent agreements (NAFTA, ECT, GATS, Shipbuilding). Canada,

supported by other delegations, requested that square brackets be put around the phrase "it considers" (to

be replaced by "would be") to help safeguard against potential abuse by constraining the selfjudging

nature of the provision. One delegation believes that, based on an ICJ decision, such a change would

eliminate the self judging nature of the provision.

4. Several delegations noted that this issue also arose in the context of the discussion on

transparency in the National Treatment chapter. Japan pointed out that in its opinion this paragraph would

also apply to concerns relating to public order.

-- subparagraph c

5. Agreements such as the NAFTA, GATS, and the Shipbuilding agreement include a general

exception provision relating to obligations for the maintenance of international peace and security. These

provisions refer specifically to obligations under the UN Charter. Some delegations thought it

unnecessary to refer to this obligation because the supremacy of the UN Charter over international treaties

is not disputed, but they agreed not to insist on its deletion if others wanted to make this explicit. Others

were of the opinion that this reference was too restrictive because it might not cover actions taken pursuant

to regional security arrangements. To address this point, the Canadian delegation proposed including,

after the words "UN Charter", the phrase "or equivalent arrangements authorised by a competent

international organization". The United States saw this as an issue of clarification rather than one of

restrictiveness and suggested including, after the word "under", the phrase "or consistent with".

Paragraph 3

1. Some countries believe that a reference to public order is necessary to allow countries to take

exceptional measures based on this principle. France indicated in a written submission

[DAFFE/MAI/DG2/RD(96)21] that a public order clause was meant to ensure certain objectives, including

the non-discriminatory application of its laws and the prevention of disturbances to the public order that

could be posed by certain foreign investments. It thought that given the different circumstances of foreign

and domestic investors as concerns the protection of public order, it would not be possible, in all cases, to

accord equivalent treatment to these different types of investors. Delegations recognised the interest of a

state in ensuring the application of its criminal laws, anti-terrorist measures, and money laundering

regulations, for example. But not all delegations were convinced that it is necessary to discriminate

between foreign and domestic investors in order to protect public order. Austria remarked that if the MAI

went beyond national treatment obligations to include the concept of market access, then the broader

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2. Several delegations were of the opinion that provision might need to be made for cases where

information requirements or other formalities might be required of foreign investors because they are not

in the same situation as domestic investors. This question also arose in the context of the discussion of the

transfer provisions in the investment protection chapter where the host state would want to preserve its

right to require certain reports without being in contradiction of the absolute right of free transfer

otherwise provided by the agreement. Article 1111 of the NAFTA was cited as a possible model to take

account of these situations. The question arose whether in fact this was not a matter of "equivalent

treatment" which could be included in the context of national treatment.

3. In situations where the state needs to ensure that all investors conform to its laws and regulations

which are not in contradiction with the provisions of the agreement, a provision of more general

application might also be needed, as in Article 5 of the Capital Movements Code. The Group could

consider a provision similar to that in the Code which would apply to the whole of the agreement. If this

were the preferred solution, it might obviate the need for a special provision in the transfer article or

elsewhere in the agreement where there might be similar concerns.

4. Several proposals were made with the intent to narrow the scope of a public order exception.

The German delegation proposed limiting the public order concept to exceptions to the national treatment

principle and to make the MAI dispute settlement mechanism applicable. Japan remarked, however, that

if the MAI went beyond national treatment obligations to include the concept of market access, then the

broader interpretation of public order would still be necessary. The European Commission suggested a

reference to the ECJ principles of proportionality and the exclusion of economic purposes as additional

limitative qualifications to public order

5. Delegations in favour of including a public order exception agreed that its use should be strictly

controlled. These delegations felt that the actions relating to public order would not be selfjudging and

would be subject to the limitation in paragraph 4 and to the procedures in paragraph 6. France, supported

by Spain, stated that these limitations and procedures should apply in the same way to other general

exceptions and that all general exceptions should be treated in the same way in relation to the applicability

of the dispute settlement mechanism.

Paragraph 4

Paragraph 4 would apply to all exceptions in this article. It is another way of formulating the

obligation that parties must be in good faith when invoking this article and cannot avail themselves of it as

a pretext for not complying with their obligations under the agreement. A good faith obligation already

exists in international law and the United States has concerns that by restating it in the agreement, we may

create a different standard. Some delegations thought it might be useful to follow the ECT (Article 24)and

GATS (Article XIV) provisos that public order or other general exceptions must not constitute a disguised

restriction or that they are invoked without proper justification. This paragraph could be considered to

have the effect of allowing a party which had reason to believe that another party had made improper use

of this article to challenge such use as contrary to the objectives of the article. A decision on paragraph 4,

in the opinion of several delegations, would have to wait until such time that consideration of paragraphs 2

and 3 had been completed.

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Paragraph 5

The content of this paragraph would need to await a discussion of the role of a "Parties Group".

The requirement to notify measures is intended to facilitate transparency and to promote consistency in the

manner that MAI Parties might apply the general exceptions provisions. Some delegations thought that

the 1991 clarification by the CIME that "measures taken for economic, cultural or other reasons should be

identified as such and should not be shielded by an excessively broad interpretation of public order and

essential security interests..", might also assist the Parties in applying these provisions.

Paragraph 6

1. Most delegations were in favour of providing for a mechanism for consultation/dispute

settlement. It would be understood that entering into consultations would not prejudice the right of either

Party to invoke the other procedures of the agreement to which it might be entitled. The question remains

whether paragraph 4 provides an objective standard which, if violated, can give rise to an actionable cause.

2. Paragraph 6 could be adapted depending on how parties wish to proceed. There are several

options which can be considered:

a) actions relating to any of the provisions of this article could be subject to consultations (as

provided for in the article or by reference to the consultations procedures of the agreement), and to the

dispute settlement provisions of the agreement to the extent that the provisions are not entirely

self judging;

b) actions relating to any of the provisions of this article could be subject to consultations (as

provided for in this article or by reference to the consultations procedures of the agreement), to the

exclusion of recourse to the dispute settlement provisions of the agreement;

c) actions relating to the public order provisions of paragraph 3, could be subject to

consultations (as provided for in this article or by reference to the consultations procedures of the

agreement), and to the dispute settlement provisions of the agreement.

3. In the view of the United States, any dispute settlement mechanism provided in the MAI would

be rendered superfluous by the selfjudging nature of the general exception provisions. This delegation

also questioned whether it would be necessary to provide a specific consultation mechanism in this article

separate from the general consultation mechanism of the MAI.

4. Whatever the procedure agreed for general exceptions, it will have to be considered in the

context of the MAI provisions on the role of the Parties Group and the dispute settlement procedures.

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TRANSACTIONS IN PURSUIT OF MONETARY AND EXCHANGE RATE POLICIES

1. Most EG5 delegations wanted to consider this issue further, including in particular whether the

transactions referred to in paragraph I should be explicitly limited to: 1)open market transactions in

government securities; and 2) foreign exchange intervention transactions. Some delegations considered

that there should be a broad carve-out for activities conducted in pursuit of monetary or exchange rate

policies by a central bank or monetary authority.

2. The Group also considered a text which would preserve the freedom of the monetary authority to

decide not to carry out transactions with foreign non-residents but which would prevent the monetary

authority from discriminating against resident (established) foreign investors when choosing the

counterpart of a transaction. This text would be added at the end of paragraph 1. It would read as follows:

"... with investors or their investments which are not legal persons constituted or organised under

the applicable law of the Contracting Party or with natural persons who do not have the nationality of, or

who are not permanently residing in the Contracting Party in accordance with its applicable law".

Some delegations considered that such an addition would not be appropriate. Other delegations wished to

reflect further on this matter.

3. One delegation asked whether restrictions on the sale of financial instruments to non-residents

hails under the above provisions or under the temporary safeguard clause (see below). In response, it was

said that under the above provisions the monetary authority would be free to determine whether or not to

sell instruments to non-residents, while restrictions imposed by the authorities on the sale by residents

other than the monetary authority to non-residents should fall under the safeguard clause.

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TEMPORARY SAFEGUARD⁽¹⁾

1. Some Delegations questioned the need to allow for a derogation from National Treatment.

2. In paragraph I a), the words "and external financial difficulties" can be found in the GATS. It is

understood that inclusion of these words narrows the scope of the safeguard clause. A few delegations

wished to review further the meaning of the phrase "and external financial difficulties."

3. Belgium reserved its position, on the role of the Fund with respect to paragraph l(b).

4. Some delegations wished to review further the relationship between this safeguard clause and the

Fund Articles of Agreement because an extension of the Fund's jurisdiction is under consideration.

5. Regarding paragraph 3 a), the Fund representative proposed that there should be flexibility in the

timing of reviews, for example, for countries implementing a Fund-supported programme, in orde. to

coincide the review under the MAI safeguard article with a scheduled review by the Fund's Executive

Board of the policies under the programme.

6. In paragraph 5 c), the United States suggested that decisions by the Parties Group to approve or

disapprove a measure shall be made by consensus minus one.

7. Concerning paragraph 7, Denmark proposed an alternative text which reads:

"The provisions of this Article cannot be invoked with regard to direct investment, proceeds

from the sale or liquidation of a direct investment, compensation from expropriation and from

strife, returns on direct investment and unspent earnings of personnel engaged from abroad in

connection with an investment".

Many Delegations preferred to delete paragraph 7 entirely so as not to qualify the scope of the safeguard

article.

8. With respect to panel consultations with the Fund in the context of Dispute Settlement, the Fund

representative proposed inclusion of the following text:

"If the dispute concerns Article A (Temporary Safeguards) or Article B (Obligations in the

Fund), the panel shall consult with the Fund and accept its decisions as to consistency of the

measures with its Articles of Agreement and its assessments made under paragraph[s] 1 [and 2]

of Article A.

It was agreed that this proposal needs to be discussed.

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1. Comments made during the informal consultations on financial matters on 14-15 April.