Research on the Application of International Humanitarian Law in International Investment Arbitration under Armed Conflicts

Abstract

In recent years, against the backdrop of the prominent escalation of longstanding historical issues and geopolitical conflicts, heightened global tensions have led to frequent armed conflicts worldwide. However, the role that International Humanitarian Law (IHL) ought to play has been overlooked in awards rendered by the International Centre for Settlement of Investment Disputes (ICSID). The non-presumptive nature of state responsibility has resulted in the application of expansive war clauses, imposing an unreasonable burden of proof on investors. International Humanitarian Law can address this deficiency by providing an international legal basis for the interpretation and application of "war clauses" in investment treaties, and by placing the burden of proving "military necessity" on the host state government. Meanwhile, it offers criteria for determining the interests and weighting in the proportionality principle applicable to indirect expropriation-specifically, it clarifies that where acts of the government’s armed forces, within the scope of necessity, have an impact on a covered investment in terms of physical assets or services, such acts shall qualify as "expropriation" as stipulated in expansive war clauses. In this way, the application of expansive war clauses is expanded, thereby providing more robust protection for China’s overseas investments.