论BIT中“投资形式变化符合东道国法律”条款的仲裁风险与防范

On the Risk and Prevention of Arbitration in Terms of “The Change of Investment Does Not Contradict the Laws and Regulations of the Contracting Party in Which Territory the Investments Were Made” in BIT

在国际投资仲裁领域，有关东道国法律适用的研究与实践众多。而就在ICSID仲裁表明东道国法律在投资定义条款中的有限性时，我国近年来签署的多份双边投资协定却进一步在定义条款中增设了“投资形式变化符合东道国法律”这一条款，由此便带来了可能的仲裁风险。而随着国际投资仲裁体系的自我完善和近年来对东道国利益的重视，通过再次审视投资定义条款的定位与功能，可以发现这一风险有弱化的趋势。站在中国的立场上，在认清外部国际投资局势变化和我国国际投资身份转换的基础上，通过灵活运用国际法和国内法，有区别的对双边投资协定进行设计，就能够较好地防范该类风险的发生并实现本国利益与输出资本利益的平衡，从而统筹国际投资领域对内对外两个大局，推动国际投资法领域的法治建构与发展。

In the field of international investment law, there are many researches and practices related to the law of the host country. But with the limitation of the law of the host country in terms of the definition of investment claimed by ICSID arbitration, a number of bilateral invest- ment treaties signed by China in recent years, in which further add ＂the change of investment does not contradict the laws and regulations of the Contracting Party in which territory the investments were made＂ this clause in the definition of terms, thus causing arbitration risks. With the improvement of the international investment arbitration system and the interest of the host country in recent years, we can see that the risk has been weakened by reconsidering the position and function of the invest- ment definition clauses. Standing in the Chinese position, on a clear un- derstanding of basic changes of the external international investment situ- ation and the transformation of China＇s international investment status, through the flexible use of international law and domestic law, design of bilateral investment agreements should be treated respec- tively, in order to achieve the risk prevention of the occurrence of good coordination and Realization of national interests and output the interests of capital, and to promote the development of the rule of law in the field of international investment law.