Moot 学术 | 华为诉瑞典ICSID仲裁与国家安全例外：合理抗辩还是掩耳盗铃？

2022-07-20

Knowledge is a treasure, but practice is the key to get it. FDI Moot Shenzhen has invited supporting law firms to contribute articles focusing on the hotspots, difficulties and key issues in the field of international investment arbitration. The article today is provided by Hui Zhong Law Firm.

MOOT

作者

杨雪瑜

北京汇仲律师事务所合伙人

黄泽宇

北京汇仲（深圳）律师事务所律师

National Security Exception as A Defense in Investment Treaty Arbitration — A Look into Huawei v. Sweden

Xueyu Yang and Zeyu Huang¹

Ⅰ

Introduction

Despite the COVID-19 pandemic outbreak, the Chinese arbitration community has witnessed an eye-catching explosion of investor-state arbitrations initiated by Chinese investors — nine treaty-based cases have been commenced or brought to light since early 2020.² This is significant because before 2020 there were only eight treaty-based cases in total. What is more interesting is that the cases brought by the investors domiciled or having residency in the Greater Bay Area (GBA) account for 10/17 of the total cases initiated by Chinese investors against foreign host states.³

This momentum indicates that Chinese investors become more confident, competent, and sometimes compelled to wield the investor-state dispute settlement (ISDS) regime to protect their overseas investments. The latest case made known publicly is Huawei v. Sweden.⁴ Huawei, the telecom giant, claims against Sweden over a 5G ban amid national security concerns. This may be the very first national security case involving a Chinese investor.

This article will look into the potential national security issue in the Huawei v. Sweden case from a perspective of customary international law.

Ⅱ

National Security Exception: Is It a Legitimate Excuse or Disguised Protectionism?

National security serves as an exception to treaty protection under certain circumstances. The scope of the exception is, logically speaking, subject to a precise understanding of the concept of national security. However, this concept has been consistently evolving and expanded to cover not only political and military security, but also economic, environmental, and public securities and so on.⁵ States often argue that their measures were rendered on the basis of the exercise of their sovereign rights and powers to regulate foreign investment for national security concerns.⁶ They may also argue that host states enjoy broad discretion in deciding whether a particular foreign investment threatens its national security or not, and how to respond.⁷ As nowadays states tend to expand the concept of national security to cover strategic industries, the borderline between national security and economic protectionism may often be blurred.⁸ A tribunal’s job is to strike a balance between states’ sovereign rights and investment protection.

Tribunals may interpret the national security exception differently in different settings. As a starting point, treaty-law exceptions and customary international law provide dual-track⁹ justification for invoking the national security exception. If the national security exception is explicitly contained in a treaty, it becomes a treaty-law exception. In the absence of an explicit treaty-law exception,¹⁰ the exception may nevertheless be invoked under customary international law.¹¹

However, it should be noted that customary international law offers a narrower exception compared to an explicit treaty-law exception.¹² In the case of explicit treaty-law exception, treaties usually set out conditions for invoking the exception one way or another. Common conditions include no arbitrary or unjustifiable discrimination, disguised restriction of investment or trade, the listing of cases in which there may be a threat to essential security interests, conformity with other international rules, the necessity of the host country’s response, etc.¹³ Other policy options such as good faith, predictability, regulatory proportionality, and accountability may also be adopted by treaty negotiators and thus help shape the future of the treaty-law exception.¹⁴ By contrast, the test under customary international law is very strict, as discussed in section III below.

Ⅲ

A Look into Huawei v. Sweden

A. Huawei’s case¹⁵

Since 2000, Huawei has heavily invested in Sweden in its Swedish subsidiary company Huawei Technologies Sweden AB (“Huawei Sweden”), focusing on the telecommunications infrastructure business.

Sweden is taking the lead in the European 5G roll-out. On 1 January 2020, Sweden amended its Electronic Communications Act (“ECA”) to ensure that the Swedish Post and Telecom Agency (“PTS”) takes national security risks into account before and after an individual telecommunications license is granted. In particular, the PTS is required to consult with the Swedish Security Police and the Swedish Armed Forces (collectively “Consultation Authorities”) when granting licenses.

On 17 April 2020, the PTS invited all major mobile network operators (“MNOs”) to Sweden’s first auction for licensing rights to operate 5G networks in Sweden (“5G Auction”). The PTS publicly stated that it currently saw no reason to exclude specific suppliers from participating in the 5G roll-out. Huawei was not considered an “unsuitable supplier” by the Consultation Authorities as late as 3 September 2020.

The Consultation Authorities performed a volte-face on 30 September 2020. In its report to the PTS, the Consultation Authorities recommended a wholesale exclusion of Huawei from the provision of 5G service. Accordingly, the PTS issued its 20 October 2020 decision (“PTS Decision”) authorizing four major MNOs to participate in the 5G Auction on the condition that Huawei shall be excluded from their list of suppliers. The PTS Decision specifically noted that “[t]he use of Huawei and ZTE products in central functions may harm Sweden’s security.”¹⁶ Notwithstanding the ongoing judicial review of the PTS Decision, the PTS completed the 5G Auction and granted licenses on 19 January 2021.

Huawei contended that the PTS Decision was arbitrary, unjustified, baseless, and non-transparent. It did not identify the specific threat posed by Huawei to Sweden’s national security. Nor did it specify the nature of the security threat or quantify its extent. Huawei further denied any suggestions that Huawei’s network system was more vulnerable to cyberattacks than its competitors or peers and claimed those allegations were nothing but fruits of prejudice and geopolitical considerations. Huawei claimed that the measures adopted by Sweden have violated the national treatment standard and the fair and equitable treatment standard, and they constituted an expropriation that merits compensations under the Sweden-China BIT 1982 (as amended in 2004).

B. The national security exception under customary international law

Although Sweden hasn’t made any submissions on merits, it could be reasonably foreseen that national security interests as alleged in the PTS Decision may be one of the decisive factors of this arbitration case. Sweden may raise the national security defense to justify its violations of the treaty obligations (if any).

In Huawei v. Sweden, the Sweden-China BIT is silent on the issue of national security. Therefore, Sweden’s justification lies only in customary international law. It is doubtful whether customary international law – as opposed to an explicit treaty-law exception – provides a developed host state like Sweden with a qualified excuse for protecting strategic industries such as the telecommunications sector when no economic crisis is imminent.¹⁷ To successfully invoke the national security exception, the strict necessity test under customary international law must be met. The necessity test is rooted in Article 25 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (“ILC Articles”),¹⁸ which provides that:

“1. [N]ecessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:

(a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril, and

(b) Does not seriously impair an essential interest of the State or the States towards which the obligation exists, or of the international community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:

(a) The international obligation in question excludes the possibility of invoking necessity; or

(b) The States has contributed to the situation of necessity.” (emphases added).

According to Article 25, the state of necessity arises in exceptional circumstances where the only way a state can safeguard its essential interest threatened by a grave and imminent peril is temporarily not to perform treaty obligations.¹⁹

Although some commentators still question the nature and status of Article 25 as a rule of customary international law,²⁰ the International Court of Justice (“ICJ”) and most tribunals have tended to treat this rule as uncontroversial international custom.²¹ For example, the ICJ in the Gabčíkovo–Nagymaros Project Case stated that “[t]he state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation.”²² This approach was later observed in another ICJ case subsequent to the ILC Articles.²³ Investor-state arbitral tribunals generally follow the ICJ approach, holding that Article 25 of the ILC Articles is a codified rule of customary international law.²⁴ Therefore, the necessity test codified by Article 25 of the ILC Articles would probably be relied on by both parties in Huawei v. Sweden.

Nevertheless, the invocation of customary necessity defense by a state to avoid international wrongfulness is extremely difficult due to its narrowness and strict requirements. As the ICJ explained in Gabčíkovo–Nagymaros Project, the necessity defense “[c]an only be invoked under certain strictly defined conditions which must be cumulatively satisfied; and the State concerned is not the sole judge of whether those conditions have been met.”²⁵ These stringent conditions set forth by the ICJ in Gabčíkovo–Nagymaros Project include:

“[I]t must have been occasioned by an ‘essential interest’ of the State which is the author of the act conflicting with one of international obligations; that interests must have been threatened by a ‘grave and imminent peril’; the act being challenged must have been the ‘only means’ of safeguarding that interest; that act must not have ‘seriously impair[ed] an essential interest’ of the State towards which the obligation existed; and the State which is the author of that act must not have ‘contributed to the occurrent of the state of necessity’.”²⁶ (emphasis added).

If the stringent necessary test set forth above is not met, a host state is unlikely to justify its departure from treaty obligations.

C. The customary necessity defense invoked before investment treaty arbitration tribunals

The state of necessity has been pleaded by host states many times before investment treaty arbitration tribunals, mostly in investment disputes arising out of Argentina’s economic crisis caused by its sovereign debt default in the late 1990s.²⁷ Nevertheless, the tribunals in most investor-state arbitration cases rejected the invocation of necessity defense raised by Argentina. This is in conformity with the exceptional nature of necessity defense emphasized by the ILC in the commentaries on Article 25.²⁸

In CMS v. Argentina where both treaty-law exception and customary international law were invoked in parallel, the tribunal considered that the economic crisis was severe enough to justify the steps taken by the government to prevent the danger of a total economic collapse, but it did not qualify as “a grave and imminent peril” that can preclude wrongfulness.²⁹ Moreover, the measures adopted by the Respondent were not the “only way” available in accordance with paragraph 1 of Article 25 of the ILC Articles.³⁰ In addition, the tribunal found that the Argentine government policies and their shortcomings significantly contributed to its economic crisis and emergency.³¹ As a result of not fulfilling the requirements under Article 25 of the ILC Articles, Argentina’s necessity defense was ultimately rejected by the tribunal.³² The plea of necessity by Argentina on the BIT basis was also denied by the tribunal as it considered no essential interest of Argentina had been impaired.³³

In Total S.A. v. Argentina, the applicable BIT between Argentina and France contains no security exception clause and thus only customary necessity defense is applicable.³⁴ Before addressing Argentina’s necessity defense, the tribunal has found that the alternation of the uniform marginal price mechanism and the refusal to pay power generators the receivables and conversions violated the fair and equitable treatment standard.³⁵ However, the necessity defense was rejected by the tribunal because Argentina failed to prove that the infringing measures were necessary as “the only way” to safeguard Argentina’s essential security interests.³⁶ As a result, among other reasons, the tribunal concluded that the Argentina’s necessity defense under customary international law was groundless.³⁷

There are also many other cases against Argentina in which a state of necessity was pleaded under customary international law but was denied by international tribunals.³⁸ They normally rejected such a defense on the ground that the measures adopted were not the “only way” and the host state contributed to the crisis or peril to national security, i.e. a state of necessity.³⁹

A more recent case of Unión v. Egypt may further boost Huawei’s confidence to thwart Sweden’s efforts in discharging the burden of proof for invoking necessity defense.⁴⁰ In this case where the Egypt-Spain BIT has no provision for exception, Egypt argued that the state of necessity under customary international law can be invoked as an alternative defense to treaty violation claims.⁴¹ It submitted that the prioritization of gas supply to Egypt’s domestic needs was the “only way” to safeguard the state’s essential interests from a grave and imminent peril, including more blackouts and social unrest.⁴² As contended by Egypt, other strict requirements under Article 25 of the ILC Articles for a state of necessity were also cumulatively met, such as not impairing the essential interests of home state Spain, and no contribution of Egypt.⁴³ However, the tribunal decided that Egypt failed to invoke the defense of necessity under customary international law as reflected in the strict requirements in Article 25 of the ILC Articles.⁴⁴ Before detailed analysis, the tribunal emphasized that “[i]t is for the Respondent to prove each of the relevant elements and not for the Claimant to disprove any of them.”⁴⁵ After assessing Egypt’s submissions to plead necessity, the tribunal found that Egypt’s necessity defense failed because the overall shortage of gas was not the relevant “essential interest” of Egypt at the materials time.⁴⁶ Furthermore, the act of curtailing the supply of gas to the Damietta Plant was not the “only way” for Egypt to achieve the policy of safeguarding the essential interest.⁴⁷

Only a few tribunals upheld the necessity defense either on a treaty-law basis or according to customary international law,⁴⁸ and these cases may be heavily relied upon by Sweden to claim the state of necessity that precludes wrongfulness.

In Urbaser v. Argentina, the applicable Argentina-Spain BIT does not prescribe an essential security exception clause. Hence, the tribunal only applied Article 25 of the ILC Articles as part of general international law to assess whether the necessity defense prevails over treaty protection obligations.⁴⁹ The emergency measures involved in this case included the devaluation, suspension of debt service payments and the pesification of assets and liabilities adopted by Argentina in 2002. By taking into assessment the factors pertinent to Article 25 of the ILC Articles, the ICSID tribunal held for two main reasons that the emergency measures were justified by the existence of a state of necessity that was sufficient to excuse the state from liabilities.⁵⁰ First, the tribunal dismissed the claimants’ argument that Argentina made a contribution to the state of necessity for lack of an explicit link of causality between the conduct of Argentina and this country’s crisis.⁵¹ Second, the claimants failed to indicate other measures that had been available to Argentina at that time, and the claimants’ argument that there were “other means” available, exclusively focusing on their own interests and protection, was not convincing.⁵²

D. Uphill battle between Huawei and Sweden

As mentioned above, Sweden has to rely on customary international law to justify its 5G ban on Huawei. If the tribunal in Huawei v. Sweden adopts the “only way” approach to the necessity test, it might be an uphill battle for Sweden to prove that the PTS Decision was the “only way” or last resort – i.e. there were no other regulatory measures – to achieve the intended policy of protecting national security in good faith. Sweden as the party pleading the necessity defense bears a very heavy burden to convince the tribunal that the conditions for invoking necessity are cumulatively satisfied since the necessity test “[i]s subject to strict limitations to safeguard against possible abuse.”⁵³

On the side of Huawei, if the tribunal adopts the Urbaser tribunal’s approach in respect of discharging the burden of proof, Huawei may need to make the best endeavors to “[o]ffer at least a serious indication as to the nature of other measures that had been available to the Government [of Sweden] at that time” of rendering the PTS Decision and conducting the 5G Auction.⁵⁴

Except for the “only way” test, the assessment of whether other stringent requirements under customary international law reflected in Article 25 of the ILC Articles have been cumulatively satisfied would also be the key battlefield for both parties in Huawei v. Sweden.

Even if Sweden successfully invokes the necessity defense in Huawei v. Sweden, it may only have the effect of temporarily suspending the duty to perform Sweden’s international obligations in Sweden-China BIT.⁵⁵ Moreover, it does not necessarily prevent Sweden from making compensations for Huawei during the state of necessity.⁵⁶ Once the state of necessity stops or disappears, Sweden may still be bound to comply with the treaty obligations or alternatively pay reparations for damages suffered by Huawei as a result of the PTS Decision and the 5G Auction. This is also recognized by Article 27 of the ILC Articles.⁵⁷

Ⅳ

‍Conclusion

Amid fierce competition in the global 5G market, national security interests play a critically important role in host states’ regulating foreign investments. A host state’s right to invoke a national security exception is, however, not boundless. Irrespective of the ultimate outcome of this case on merits, Huawei v. Sweden would undoubtedly shed light on China-related investment treaty arbitration jurisprudence in respect of national security exception. This case is also rather enlightening and encouraging for other Chinese enterprises currently facing regulatory challenges from India for national security or essential interest reasons.⁵⁸ These Chinese “national champions” are at their will to consider wielding the ISDS clause in the China-India BIT as well as customary international law to test whether it is disguised protectionism or not. Indeed, they should be ready for it.

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1 Xueyu Yang is a partner of Hui Zhong Law Firm based in Beijing. Ms. Yang has particular expertise in handling complex contentious matters involving multiple jurisdictions. Ms. Yang has advised both domestic and foreign clients in proceedings conducted at the ICSID, PCA, ICC, HKIAC, SIAC, CIETAC, BAC and different levels of domestic courts including the Supreme People’s Court of China. Dr. Zeyu Huang is an associate of Hui Zhong Law Firm based in Shenzhen. Dr. Huang holds LL.B. (Renmin University of China Law School), and LL.M. & Ph.D. (University of Macau). He has advised both Chinese and foreign clients in proceedings conducted at the ICSID, HKIAC, SCIA and several levels of domestic courts in the People’s Republic of China. Both authors are currently representing clients in ongoing ICSID arbitration proceedings. The authors may be contacted at: huangzeyu@huizhonglaw.com.

2 Xueyu Yang & Zeyu Huang, ‘Protected Investor and Investment – A Perspective from the Greater Bay Area in China’ (2022) 25(1) International Arbitration Law Review 1, footnote 8, at 2-3.

3 Yang & Huang, supra note 2, at 3-4.

4 Huawei Technologies Co. Ltd. v. Sweden, ICSID Case No. ARB/22/2, 21 January 2022 (Date Registered) (hereinafter “Huawei v. Sweden”).

5 See Continental Casualty Company v. The Argentine Republic, ICSID Case No. ARB/03/9 (hereinafter “Continental Casualty v. Argentina”), Award, dated 5 September 2008, para. 175. See also Ji Ma, ‘International Investment and National Security Review’ (2019) 52 Vanderbilt Journal of Transnational Law 899, at 907.

6 See e.g. Continental Casualty v. Argentina, ibid, para. 175 (“As to ‘essential security interests,’ it is necessary to recall that international law is not blind to the requirement that States should be able to exercise their sovereignty in the interests of their population free from internal as well as external threats to their security and the maintenance of a peaceful domestic order.”).

7 UNCTAD, The Protection of National Security in IIAs (United Nations 2009), UNCTAD/DIAE/IA/2008/5, at 3.

8 See UNCTAD, ibid, at 26.

9 See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US), [1986] ICJ Rep 14, Judgment of 27 June 1984 (Merits), at 95 (considering that “[e]ven if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.”).

10 While the majority of free trade agreements (FTAs) are equipped with national security exceptions, not many BITs contain such exceptions. See UNCTAD, supra note 7, at 3 (the survey conducted in 2009 showed only 12 per cent of reviewed BITs included national security exception clause.); Karl P. Sauvant et al., ‘The Rise of Self-Judging Essential Security Interest Clauses in International Investment Agreements’ (2016) 188 Columbia FDI Perspectives, at 1 (only 222 of 1861 (i.e. 11.9%) IIAs concluded by 90 countries contained self-judging national security clause before early 2016.).

11 See UNCTAD, supra note 7, at 34 (“[…] customary international law provides justification for States to derogate from IIA obligations, even when it is not expressly mentioned in the treaty.”). See also Willian W. Burke-White & Andreas von Staden, ‘Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties’ (2007) 48 Virginia Journal of International Law 307, at 324.

12 See UNCTAD, supra note 7, at 36.

13 See ibid, at 81-96.

14 See OECD, Freedom of Investment, National Security and “Strategic” Industries: An Interim Report, approved by the OECD Investment Committee on 30 March 2007, at 56-57. China and several other non-OECD countries participated in the discussions leading to the OECD Report.

15 This section is based on Huawei’s Request for Arbitration dated 7 January 2022. As of the date of writing this article, Sweden hasn’t made submissions on merits yet.

16 PTS Decision in Matter No. 18-8496, dated 20 October 2020, at 5, cited in Huawei v. Sweden, Request for Arbitration, dated 7 January 2022, para. 47.

17 See UNCTAD, supra note 7, at 36.

18 Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries, adopted by the International Law Commission (ILC) on 9 June 2001 (hereinafter “ILC Articles”).

19 See ILC Articles, commentaries on Article 25, at 80.

20 See Robert D. Sloane, ‘On the Use and Abuse of Necessity in the Law of State Responsibility’ (2012) 106 American Journal of International Law 447, at 452, 471 (citing the doubt expressed by Ian Brownlie that international law recognizes necessity as an “omnibus” defense to state responsibility.).

21 Ibid.

22 See Gabčíkovo–Nagymaros Project (Hungary/Slovakia), 1997 ICJ Rep 7, Judgment of 25 September 1997, para. 51.

23 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ Rep 136, Advisory Opinion of 9 July 2004, para. 140.

24 See the discussions in III.C. and Sloane, supra note 20, at 450, footnote 25 referring to CMS Gas Transmission Co. v. The Argentine Republic, ICSID Case No. ARB/01/8 (hereinafter “CMS v. Argentina”), Award, 12 May 2005, para. 315; Sempra Energy International v. The Argentine Republic, ICSID Case No. ARB/02/16 (hereinafter “Sempra v. Argentina”), Award, 28 September 2007, para. 344.

25 See Gabčíkovo–Nagymaros Project (Hungary/Slovakia), supra note 22, para. 51. See also ILC Articles, commentaries on Article 25, at 80.

26 See Gabčíkovo–Nagymaros Project (Hungary/Slovakia), supra note 22, para. 52.

27 See Sloane, supra note 20, at 498 (“[a]s of this writing [in 2012], some twenty awards and annulment decisions have considered necessity in this context.”).

28 See ILC Articles, commentaries on Article 25, at 80 (saying that “[T]he plea of necessity is exceptional in a number of respects … These special features mean that necessity will only rarely be available to excuse non-performance of an obligation …”.).

29 See CMS v. Argentina, supra note 24, paras. 322.

30 Ibid, para. 324.

31 Ibid, para. 329.

32 Ibid, para. 331.

33 Ibid, para. 358.

34 See Total S.A. v. The Argentine Republic, ICSID Case No. ARB/04/1 (hereinafter “Total S.A. v. Argentina”), Decisions on Liability, 27 December 2010, paras. 229-230.

35 Ibid, para. 345.

36 Ibid, para. 484.

37 Ibid.

38 See Mobil Exploration and Development Inc. Suc. Argentina and Mobil Argentina S.A. v. The Argentine Republic, ICSID Case No. ARB/04/16, Decision on Jurisdiction and Liability, 10 April 2013, para. 1124 (only based on Argentina’s contribution to peril, excluding the “one way” test); AWG Group Ltd. v. The Argentine Republic, UNCITRAL ad hoc arbitration, Decision on Liability, 30 July 2010, para. 265; Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. (formerly Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A.) v. The Argentine Republic (II), ICSID Case No. ARB/03/19, Decision on Liability, 30 July 2010, para. 265; Suez, Sociedad General de Aguas de Barcelona S.A., and InterAgua Servicios Integrales del Agua S.A. v. The Argentine Republic, ICSID Case No. ARB/03/17, Decision on Liability, 30 July 2010, para. 243.

39 Ibid.

40 See Unión Fenosa Gas, S.A. v. Arab Republic of Egypt (hereinafter “Unión v. Egypt”), ICSID Case No. ARB/14/4, Award, 31 August 2018.

41 Ibid, para. 8.5.

42 Ibid, paras. 8.7 and 8.13.

43 Ibid, paras. 8.15-8.19.

44 Ibid, para. 8.62.

45 Ibid, para. 8.38.

46 Ibid, para. 8.58.

47 Ibid, para. 8.46.

48 See Continental Casualty v. Argentina, supra note 5, paras. 231, 232; LG&E Energy Corp., LG&E Capital Corp. and LG&E International Inc. v. The Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability, 3 October 2006, paras. 226, 269.

49 See Urbaser S.A. and Consorcio de Aguas Bilbao Biskaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26 (hereinafter “Urbaser v. Arigentina”), Award, 8 December 2016, para. 718.

50 Ibid.

51 Ibid, paras. 710-715.

52 Ibid, paras. 716-718.

53 See ILC Articles, commentaries on Article 25, at 80. See also Sloane, supra note 20, at 450 (noting that “[N]ecessity, after all is notoriously subject to abuse”.).

54 See Urbaser v. Argentina, supra note 49, para. 717.

55 See CMS v. Argentina, supra note 24, para. 388 (The tribunal considered that “[t]he plea of state of necessity may preclude the wrongfulness of an act, but it does not exclude the duty to compensate the owner of the right which had to be sacrificed.”). See also Sloane, supra note 20, at 486.

56 See CMS v. Argentina, supra note 24, para. 388; South American Silver Limited v. The Plurinational State of Bolivia, PCA Case No. 2013-15, Award, 22 November 2018, para. 620.

57 See ILC Articles, Article 27 and accompanying commentaries.

58 See Shruti Srivastava, ‘India Probes ZTE, Vivo as More China Firms Under Scrutiny’, Bloomberg, 50 May 2022.