Elgar International Investment Law series
Chapter 7: Exceptional models
Specific ways of taking non-commercial issues into account when applying investment rules refer to a legal model of exception. This is the case in IIA clauses that set out ‘general exceptions’ according to the GATT Art. XX model. Moreover, circumstances precluding wrongfulness – specifically necessity – which are invoked to address complex interpretative issues in conflicts between different spheres of values, could be related to the notion of exception. Before an in-depth analysis as to how different kinds of exception may variously help to address the issue, which is undertaken in Sections 2 to 4 below, an explanation of the meaning of exception from a legal point of view is necessary. Exception lies at the crossroads of multiple legal questions. Leaving aside its more particular meaning – respondent defences in civil proceedings – the notion of exception is entrenched in and intertwined with not only that of law, but also of rule. The very idea of rule, at least in the practical sciences, seems to bring that of exception, as the maxim exceptio probat regulam in casibus non exceptis attests. But what does it mean for rules of law to have exceptions?
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