国家与国有企业关系——论归因规则在国际投资仲裁中的适用

The Relationship between State and State-owned Enterprises——on the Application of Attribution Rules in International Investment Arbitration

国有企业在世界市场上的参与度加深必然会更多地与私有企业接触,进而纠纷也会逐渐增多。一般而言,平等主体纠纷解决可通过国际商事仲裁或者一国国内司法体系完成。但是由于国有企业主体的特殊性,上述渠道会变成国际投资仲裁。这种转变的关键点就在于归因规则的适用。《国家对国际不法行为的责任条款草案》对归因规则作出了规定,仲裁庭实践中也对如何利用归因规则分析国有企业行为提供了实例。当然,如何在国际投资法领域里看待国有企业也对如何适用规则十分重要。对我国而言,我国有着众多国有企业,又恰逢我国进一步的改革开放以及新的国有企业改革,这种发展现状与发展阶段的叠加,也为将来我国面临因国有企业行为而成为国际投资仲裁被申请人埋下了伏笔。学习归因规则,了解其实践,明确规则如何看待国有企业就有了必要。只有正确处理政府与市场关系,正确引导国有企业改革才能让国有企业真正为自己的行为买单。

The deepening participation of state-owned enterprises in the world market will inevitably lead to more contact with private enterprises, and the disputes will gradually increase. In general, the resolution of equal subject disputes can be accomplished through international commercial arbitration or a domestic judicial system. However, due to the particularity of the state-owned enterprises, the above channels will replaced by international investment arbitration. The key to this shift is the application of attribution rules. Attribution rules are written in the Draft articles on Responsibility of States for Internationally Wrongful Acts, and the tribunal provides examples of how to use attribution rules to analyze the behavior of stateowned enterprises. Of course, the status of state-owned enterprises in the field of international investment law is also important for how to apply the rules. For China, because China has many stateowned enterprises, it coincides with China’s further reform and opening up and the reform of new state-owned enterprises. Under the superposition of this development status and development stage, it is also a foregone conclusion that China is facing an international investment arbitration applicant due to the behavior of stateowned enterprises. It is necessary to learn the attribution rules, understand their practices, and clarify how the rules deal with stateowned enterprises. Correctly handling the relationship between the government and the market, and correctly guiding the reform of state-owned enterprises, can make state-owned enterprises really be responsible for their own behavior.