国际法治视角下的BIT“联合解释”问题研究——以中国缔约文本为切入点

The Study of Joint Interpretation of BITs from an International Rule of Law Perspective: A Research Starting from China's Treaty Texts

中国目前对外缔结的BIT中,已有六份文本包含了"联合解释"条款,即授权缔约双方通过联合解释处理争议中的法律问题。联合解释在国际投资争议中已有实践,但也因投资者"正当期待"、溯及力等问题,引发了是否符合国际法治理念的质疑。从国际法律渊源的角度讲,条约联合解释属于缔约国固有权力的延伸,也是国际法治的基本推动力量。联合解释必然服务于某种政治目的,但只要对其进行法治化规范,就无损于国际法治的基本精神。中国目前缔约文本已经日趋完善,但仍须注意明确设定解释时限,并对各类解释的法律约束力进行更加严谨的措辞。

：Currently, six BITs concluded by China contain joint interpretation clauses. That is, contracting states are free to deal with legal issues arising from disputes by joint interpretation. Joint interpretation doesn＇ t lack practices in international investment disputes, but it also incurs challenges because of issues such as legitimate expectation and retroactivity. Judging from the source of international law, joint interpretation is no more than the extension of contracting states＇ existing rights and the fundamental driving force of the international rule of law. Joint interpretation has to serve a certain political purpose, but it wouldn＇ t harm the international rule of law as long as being checked by legal means. Constant improvement could be seen in China＇ s current conclusion of BITs, while modifications would still be needed in the setting of time limits for joint inter-pretation. Moreover, more careful wording would also be needed in the stipulation of binding power of joint interpretations.