Research on the Response Strategies to the Host State's Security Defense in International Investment Arbitrations:Taking Huawei v.Sweden as an Example
The national security exception,due to its dual(political and legal)nature,is invoked frequently by Western countries to block the overseas investments of Chinese enterprises in recent years.A vivid example is Sweden's ban on China Huawei's investment in Sweden.Having exhausted local remedies in Sweden to no avail,Huawei filed an international investment arbitration with ICSID in 2022.The case is about to enter the substantive review stage.By analyzing the legal reasons that support the host country's security defense,together with the facts of this case,it is believed that Sweden is most likely to raise its security defense on the ground of"critical situation"under customary international law.Accordingly,Huawei should adopt the following strategies during the arbitration:explicitly deny the existence under customary international law of Sweden's"critical situation",and invoke"adverse presumptions"at the proof stage to disallow Sweden's claim of"national security exception"as a defense,and finally,file a claim against Sweden for breach of investment protection obligations.As the first international investment arbitration case filed on the 5G ban,this case is of great value to Chinese investors in dealing with"critical situations"under customary international law,and also provides a proactive reference for responding to other security defenses(i.e.,the national security exception clause in international investment treaties).
National SecuritySecurity DefensesAdverse PresumptionCustomary International LawCritical SituationNational Security Exception Clause
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