中国—加拿大双边投资条约述评

Comments on the Canada-China Bilateral Investment Treaty

由于决策过程中独立性、公开性和公平性的缺失,中国与加拿大之间的双边投资条约为加拿大政府埋下了法律与政策隐忧。与此同时,由于条约中存在所谓最惠国待遇条款的'戏法',中加两国所需承担的风险和责任并未达到安全水平。鉴于中加投资条约的长期锁定效应,投资条约仲裁的新颖性和扩张性对于中加两国至关重要。有鉴于此,中国和加拿大两国政府均应放弃或撤回那些旨在批准条约所采取的措施,转而组织更大范围内可能受条约影响的利益攸关者对该条约及其所包含的私人投资者与国家之间的仲裁机制进行审慎评估。

Due to a lack of independence,openness,and fairness in the decision-making process,the Canada-China bilateral investment treaty raised legal and political concern for the Canadian government.Meanwhile,due to the treaty’s so-called"sleight of hand"on most-favored-nation treatment,the risks and liabilities for China and Canada are not reliably moderated to a safe level.The novelty and expansion of investment treaty arbitration is also important to consider in Canada and China,especially considering the long-term lock-in period of the Canada-China treaty.It is argued in this article that Canada and China should forego or withdraw steps taken toward ratification until the treaty and its investorstate arbitration mechanism have been assessed by a wider range of actors who are potentially affected by the treaty.