Revisiting Essential Security Interest Clause of The Bilateral Investment Treaty To Protect Indonesian Strategic Industries

Indonesia’s growing dependence on Foreign Direct Investment (FDI) to develop strategic industries and infrastructure such as basic metals, mining, and transportation raises concerns over sovereignty and regulatory freedom. While Bilateral Investment Treaties (BITs) encourage and protect FDI, they may restrict the host state’s ability to regulate to some extent. Essential Security Interest (ESI) is a very sensitive area where the interest of investors and the host state may collide. Despite its potential importance, the ESI clause in Indonesia's BITs and ISDS proceedings remains underutilized. This study examines how Indonesia can invoke the ESI exception to protect strategic industries from adverse foreign influence through its actions. Using a normative juridical method supported by a comparative approach, this research analyzes international agreements, arbitral awards from ICSID and the PCA, as well as secondary law sources. The comparative analysis explores interpretations of self-judging and non-self-judging ESI clauses in various BITs. This study finds that, when ESI clauses are properly drafted and invoked, they can provide a strong legal basis for safeguarding strategic industries of a host state in ISDS. Strengthening and utilizing ESI clause in more Indonesian BITs could enhance national security protection while maintaining a favorable investment climate.

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Publication Details

Journal
Unram Law Review
Published
2026-10-30
DOI
https://doi.org/10.29303/ulrev.v10i2.531
Primary Topic
International Arbitration and Investment Law
Type
article
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article

Revisiting Essential Security Interest Clause of The Bilateral Investment Treaty To Protect Indonesian Strategic Industries

Prita Amalia, Mursal Maulana, Muhammad Riadi Setiawan
Unram Law Review
International Arbitration and Investment Law
article

Revisiting Essential Security Interest Clause of The Bilateral Investment Treaty To Protect Indonesian Strategic Industries

Prita Amalia, Mursal Maulana, Muhammad Riadi Setiawan
article en

Abstract

Indonesia’s growing dependence on Foreign Direct Investment (FDI) to develop strategic industries and infrastructure such as basic metals, mining, and transportation raises concerns over sovereignty and regulatory freedom. While Bilateral Investment Treaties (BITs) encourage and protect FDI, they may restrict the host state’s ability to regulate to some extent. Essential Security Interest (ESI) is a very sensitive area where the interest of investors and the host state may collide. Despite its potential importance, the ESI clause in Indonesia's BITs and ISDS proceedings remains underutilized. This study examines how Indonesia can invoke the ESI exception to protect strategic industries from adverse foreign influence through its actions. Using a normative juridical method supported by a comparative approach, this research analyzes international agreements, arbitral awards from ICSID and the PCA, as well as secondary law sources. The comparative analysis explores interpretations of self-judging and non-self-judging ESI clauses in various BITs. This study finds that, when ESI clauses are properly drafted and invoked, they can provide a strong legal basis for safeguarding strategic industries of a host state in ISDS. Strengthening and utilizing ESI clause in more Indonesian BITs could enhance national security protection while maintaining a favorable investment climate.

Unram Law ReviewVol. 10(2)
Padjadjaran University (ID)
Peace, justice, and strong institutions, Industry, innovation and infrastructure
Openalex Percentile: Top 9%
International Arbitration and Investment Law
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Revisiting Essential Security Interest Clause of The Bilateral Investment Treaty To Protect Indonesian Strategic Industries — Prita Amalia, Mursal Maulana, et al. · Unram Law Review (2026) | TGRS Research Map | TGRS