应对投资争端解决机制变革的中国方案及其实现

China’s Proposal for the Reform of ISDS Regime and Its Realization

投资争端解决机制正处在变革期,因为投资客观情势已经发生了变化,引发的新问题明显溢出原有机制。为了应对这一局面,国际投资争端解决中心以及联合国国际贸易法委员会下的仲裁机制正在进行内部更新,欧洲和北美分别基于地区需求实践了不同方案。在国际社会发生根本变化的背景下,投资争端解决机制或许应当重新检视其基本理念。中国作为最重要的投资东道国,《外商投资法》确认的投诉协调处理机制具有很好的国际法意义和价值。投诉协调处理机制根本上不同于既有的、基于并囿于以仲裁为核心的投资争端解决机制,可为其发展提供一种超越技术而深入机理的理念变革,即从传统的投资者东道国对抗式争端解决转向二者合作解决争端,为处于发展关键期的投资争端解决机制改革提供真正的中国方案。为了实现这一中国方案,可借助我国主导和参与的多边平台构建具体机构,同时可借助具有域外效力的国内法以及具体规则进行落实。

The ISDS regime is now being reformed,which is caused by the need to tackle with new issues due to critically changed international investment situations. Whereupon,the traditional arbitration regime of ICSID and UNCITRAL is being updated,European Investment Court and USMCA has been adopting different approaches in accordance with regional needs. With fundamental changes in the international community,the ISDS regime needs to be re-examined over its basic ideology and concept. As one of the most important host countries,China has established a mechanism for coordinating and dealing with foreign investment complaints in the Foreign Investment Act,which is of great significance and value in international law. The mechanism is essentially different from existing ISDS regime which has been taking investment arbitration as the core. Whereas,this China’s approach may shed light upon the reforming and development of ISDS and may be the foundation for China to propose for the development of ISDS. To realize such a proposal,China may promote the establishment of a specific institution in regional and multilateral platforms and organizations.At the same time,it can also be achieved through China’s domestic law with international effects and through the codification of specific rules.