国际投资仲裁应对贿赂与腐败问题研究

Analysis of the Approaches adopted in International Investment Arbitration in Dealing with Bribery and Corruption

贿赂与腐败会对各国经济政治社会领域产生负面影响,打击贿赂与腐败已然成为国际共识。国际投资仲裁中,贿赂与腐败是一把双刃剑,既可以作为投资者提出相关诉求的依据,也可以为东道国所运用作为抗辩。然而,目前还未出现投资者关于东道国腐败的诉求得到支持的案例,但东道国有关投资涉及贿赂无管辖权或不可受理的抗辩却多获支持。为了平衡东道国和投资者利益,现有投资仲裁实践有待改进和完善。在中国鼓励企业"走出去"和提出"一带一路"倡议的形势下,中国应为对外投资者提供条约保护,通过订立双边投资协议或自由贸易协定以更主动的姿态改变和塑造国际投资仲裁实践,从而在实现打击贿赂和腐败的公共利益的同时给予投资者适当保护。

Bribery and corruption have negative effects on a state’s economics,politics and society,and thus the international societyhas reached the consensus on combating bribery and corruption. In international arbitration practice,bribery and corruption is a doubleedged sword. It can be used by investors as the basis for their claims;it could also be relied upon by the states as their defenses. However,no investors’ corruption claims were supported by the tribunal up until now,while there were several cases which supported the state’s bribery defense. Therefore,in order to rebalance the interest between the state and the investor,the current arbitration practices need to be reformed and perfected. As China is encouraging Chinese enterprises to "go out" and is developing the Belt and Road Initiative,China shall provide Chinese investors with sufficient treaty-protection,taking a more active position in changing and forming the practice of international investment arbitration.