投资者与东道国争端解决机制的新发展及其启示

Recent Development of Investor-State Dispute Settlement Mechanism and Its Implications

设计投资仲裁机制的初衷是以非政治化方式解决争端,但在实践中往往成为跨国公司挑战东道国政策措施的手段,所以澳大利亚等国目前不再纳入上述条款。可以通过设立上诉机构、常设国际投资法院以及引入调解等替代争端解决方式改革投资仲裁制度。我国也可以借鉴上述做法应用于上海自贸区的争端解决实践。

Investor-state dispute settlement mechanism aims to protect foreign investment and settle the investment disputes in a neutral way. In practice, multinational corporations use ISDS to challenge policy measures of host states, and ISDS was considered to have several faults. As a result, several states do not incorporate this mechanism in their treaty practice including Australia. To reform the ISDS, we may set up appellate body, permanent international investment court and incorporate ADRs. China may take similar measures to the dispute settlement practice of Shanghai pilot FTZ.