国际投资仲裁语境下信托投资 的保护困境及路径权衡——以“Blue Bank v. Venezuela”等案为切入点

Protection Dilemma and Path Trade-off of Trust and Investment in the Context of International Investment Arbitration——Taking "Blue Bank v. Venezue" and Other Cases as the Starting Point

国际投资仲裁实践中不乏涉及信托的案例,通过考察此类案例,不难发现,信托投资保护止步于管辖权异议。这一现象可归因于双边投资协定列入法人投资者范畴导致仲裁申请人诉权行使疑义、信托投资者国籍争议以及信托特殊的权力结构,引发国际投资仲裁庭在界定涉案财产所有权归属时存有歧义等问题。事实上,在多项国际投资协定及多类国际条约中已有信托法人人格的尝试引入,信托受托人法定权力也得到了各国信托法确认。在此背景下,应重新权衡信托国际投资仲裁的审理逻辑,具言之,可考虑在BIT投资者类别适当肯定信托法人人格、将信托控制权所在地作为信托国籍的判断标准,赋予信托受托人作为国际投资争端解决中心申请人的正当性。

There are many cases involving trusts in the practice of international investment arbitration.After examining such cases,it is not difficult to find that the protection of trust investment stops at jurisdictional objections.This phenomenon can be attributed to the fact that the inclusion of the bilateral investment agreement in the category of legal person investors leads to doubts about the arbitration applicant’s exercise of the rights of litigation,disputes over the nationality of trust investors,and the special power structure of the trust.There are ambiguities and other issues in the ownership of property.In fact,there have been attempts to introduce trust legal personality in many international investment agreements and many types of international treaties,and the legal power of trust trustees has also been confirmed by the trust laws of various countries.In this context,the trial logic of trust international investment arbitration should be re-evaluated.In particular,it may be considered to appropriately affirm the personality of the trust’s legal person in the category of BIT investors,use the location of the trust’s control rights as the criteria for determining the nationality of the trust,and give the trustee the role of legitimacy of applicants from the International Center for the Settlement of Investment Disputes.