人本化对TPP谈判中国际投资仲裁机制设计的影响

On the Affections of Humanization to the Issue of Investor-state Dispute Settlement System in TPP Negotiation

投资仲裁制度的设计是"跨太平洋伙伴关系协议"(TPP)谈判最引人关注的问题之一,而澳大利亚政府的声明更将该协议的可适用性与合理性置于争议地位。尽管澳大利亚的立场确有其自身的特殊原因,但从国际法人本化的角度分析,投资仲裁机制从其缘起到发展都以"人本"作为重要的驱动力,却也正因在此领域内的逐渐迷失而受到质疑和挑战。以此为鉴,TPP谈判可能在未来追求投资争议解决目标与形式的多元化,在"人本化"的基础上,使得该机制更加注重东道国与投资者利益的平衡。而中国在今后的谈判中,应以实现多层次和具体化的制度设计为目标,针对不同的谈判对象设计不同的谈判策略,通过具体条款合理限制投资仲裁的适用范围,并避免平行诉讼等情形的发生,以更好地维护投资仲裁制度的合法性和可适用性。

The issue of Investor-state Dispute Settlement System （ISDS） is one of the most noticeable items on TPP （Trans Pacific Partnership） negotiation table. Specifically, the issue has intensified as the changing of attitude from the Australian Government. Although the stance of Australia had its special reason, ISDS has been generally doubted and challenged in recent years because of gradual loss in ＂human-orientation＂ though this system takes it as an important driving force from its origin to development from the perspective of humanization of international law. Taking this as a warning, TPP negotiation is likel~~ to pursue the diversification of investment dispute settlement objectives and means and make ISDS attach more importance to the balance between host country and investor interests on the basis of ＂humanization＂ in the future, while China should take the realization of multilevel and specific system design as objective, design different negotiation strategies directing at different negotiation objects, rationally limit the range of application of investment arbitration through specific clause and avoid the occurrence of situation such as parallel proceedings in future negotiation, so as to better maintain the legality and applicability of the ISDS.