BIT和FTA框架下环境规则的经验研究——基于文本的分析

An Empirical Study on Environmental Rules under the Framework of BITs and FTAs Based on the Analysis of the Texts

在现代BIT和包含投资规则的FTA中加入环境规则成为一种普遍现象。BIT和FTA文本在环境条款的表现形式上日益丰富,"非排除措施"条款、平衡条款、除外条款、冲突条款、程序条款等类型不断涌现。美国2012年BIT范本细化并强化了东道国的环境规制权,为各国修订BIT树立了典范。纵观BIT和FTA中环境条款的发展态势,在立法模式上其经历了从双边投资协定向自由贸易协定的演化,在内容和架构上历经了从一元向多元、从分散到集中的演变,在定位上则实现了从完全附属到去边缘化的突破。

It is a common way to embody environmental clauses into modern BITs and FTAs containing investment rules. Such forms of environment clauses as ＂non-precluded measures＂ clauses, balancing clauses, carve-out clauses, conflict clauses and procedural clauses in the texts of BITs and FTAs have been emerging, and are increasingly abundant. The 2012 U.S. version of BIT, which has refined and strengthened the environmental regulation power of the host country, sets a good example for other countries to revise their own BITs. Through analyzing the development trend of environmental clauses in BITs and FTAs, the paper concludes that environmental clauses have experienced the evolution from bilateral investment treaties to free trade agreements in terms of the legislative mode, and as to the content and structure, they have experienced the development from unitary to diversity, and from decentralization to centralization. Finally, with regard to the positioning, a breakthrough has happened from complete subsidiary to de-marginalization.