论国际投资协定中履行要求的问题及对策

On Problems and Solutions in Performance Requirement in International Investment Agreements

在国际投资中,东道国可以通过履行要求实现其经济和社会长期发展的目标。但如果不对履行要求进行规制,其也存在被滥用的风险,成为潜在的投资壁垒。既存国际投资协定对履行要求的规制存在诸多问题:除了禁止履行要求条款,投资定义、国民待遇和间接征收等条款的影响增加了履行要求适用的复杂性;仲裁庭对履行要求的认定、区分和解释也并未形成明晰和一致的标准。虽然关于履行要求本身的规制很难在短时间内达成共识,但可以在国际投资体制内通过多边平台、双边或区域性平台以及国内规则多维度的制度设计,保证东道国和投资者权利义务的平衡。

In international investment, host country can achieve its long-term econonfic and social development goals by implementing performance requirements. However, if performance requirements are not regulated, they can also have the risk of being abused and become potential investment barriers. There are many problems in the regulation of performance requirements of existing international investment agreements： on the one hand, in addition to performance requirements prohibitions, the influence of other clauses such as investment definition, national treatment and indirect expropriation has add the complexity of the implementation of performance requirements; on the other hand, the arbitral tribunal have not formed a clear and consistent standards on the identification, differentiation and interpretation of performance requirements. Although it is difficult to reach a consensus within a short period of time, it is possible to balance the rights and obligations between host states and investors by multi-dimensional institutional design of multilateral platforms, bilateral or regional platforms, and domestic rules.