海外并购争议解决之ICSID仲裁——必要而“奢侈的消费”

ICSID Arbitration for Overseas Mergers and Acquisitions: Exhausting and Expensive Process

随着我国经济实力的增强,我国作为世界资本输入大国的同时,也逐渐成为世界资本输出大国。而在诸多对外投资活动中,海外并购地位突出,尤其是在金融危机之后,海外并购活动异常活跃。在海外并购出现争议时,协商、调解、调停、国内司法途径等都是重要的争端解决方式,此外,ICSID仲裁也是重要的争议解决途径。对我国而言,不断增加的海外并购也可能带来更多的争议,例如我国平安就其在比利时的并购争议向ICSID申请仲裁就是一例。但是,近年来ICSID仲裁面临了诸多的挑战。本文认为,尽管国际社会对ICSID仲裁有诸多质疑,但是这一制度对解决海外并购争议仍是必不可少的。但是,在真正利用这一制度解决争议时,该制度审理耗时长、费用高、执行难等特点却也使其成为"奢侈的消费"。

With the growth of China＇s economic strength, China, one of the world＇s capital-importing countries, is gradually becoming one of the world＇s capital-exporting countries. In a variety of foreign investment activities, the status of overseas mergers and acquisitions is very remarkable, and especially in the wake of the financial crisis, overseas mergers and acquisitions activity becomes very active. When dispute arises in overseas acquisitions, negotiation, conciliation, mediation, domestic legal channels are important means of dispute settlement. In addition, ICSID arbitration also plays an important role in international investment disputes settlement. For my country, the increasing number of overseas mergers and acquisitions may also lead to more disputes. For example, Ping An of China applied for ICSID arbitration in order to settle its merger dispute with Belgium. However, ICSID arbitration has faced many challenges in recent years. This paper argues that although the international community questions ICSID arbitration, this system is still an imperative means to solve disputes overseas mergers and acquisitions. However, ICSID arbitration has some deficiencies like long duration, expensive legal fees and costs and rough enforcement which make it extravagant for both investors and states.