II. Rationale for treaty exclusions for natural resources
Treaty exclusions for natural resources direct the tribunal to assess whether the alleged treaty breach is excused on the basis of the exception. This differs from a situation where a tribunal balances the competing interests of investor protection with societal or environmental protection in determining a treaty breach, as is the case, for instance, where investment treaties simply emphasise on the importance of principles such as environmental protection and sustainable development in their preambles3 or special provisions.4
III. Types of treaty exclusions for natural resources
Investment treaties may incorporate natural resources exclusions in numerous ways:
Hindelang, S. and Krajewski, M. (eds.), Shifting Paradigms in International Investment Law: More Balanced, Less Isolated, Increasingly Diversified, 2016.
Qalo, V., Bilateralism and Development: Emerging Trade Patterns, 2008.
Rabinowitz, R.W., Japan's Foreign Investment Law of 1950: A Natural History, 2003.
Southern African Development Community and others, Investment Regimes, Foreign Direct Investment Trends, and Characteristics in SADC Member States, 2010.
Yannaca-Small, K., Arbitration Under International Investment Agreements: A Guide to the Key Issues, 2010.
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