外资准入国民待遇的救济体系论

The System of Remedies for National Treatment for the Admission of Foreign Investment

救济机制是外资准入国民待遇制度的重要内容。准入后待遇侧重对已有投资的保护,而外资准入承诺涉及开放和交换市场,因而准入后救济机制并不当然适用于准入阶段。构建外资准入国民待遇的救济体系,应从救济平台、诉权分配、诉请内容、救济方法等角度展开。在救济平台方面,应协调国内救济与国际救济,允许投资者在可诉性范围内寻求当地救济或者依据国际投资条约寻求条约救济;在诉权分配方面,应平衡投资者诉权与投资者母国诉权,避免重复救济;在诉请内容方面,由于损害赔偿诉请难以量化和证明、无法跨越准入障碍,可以强化国家间履约责任诉请的救济作用;在救济方法方面,在裁判机制之外,应强化投资调解、争端预防等替代机制的救济功效,更灵活地实现投资者的准入诉请。

The remedy mechanism is a fundamental part of the national treatment system for the admission of foreign investment.While post-entry treatment focuses on the protection of existing investment,pre-entry commitment relates to market access and the exchange of market opportunities.Therefore,the post-entry remedy system is not necessarily suitable for the pre-entry phase.The construction of a comprehensive system of remedies for national treatment for the admission of foreign investment can be carried out in the following aspects:platform of remedies,allocation of the right of action,contents of claims and methods of remedies.With respect to the platform of remedies,China should coordinate local remedies and international remedies to enable foreign investors to either pursue local remedies within the scope of justiciability or to seek treaty remedies in accordance with international investment treaties.Wwith respect to allocation of the right of action,the right of action for foreign investors and the right of action for the home state of foreign investors need to be balanced to avoid double remedy.With respect to the content of claim,since claims of compensation for the disapproval of foreign investment are faced with difficulties in quantification and proof and unable to overcome the admission barriers of foreign investment,it is thus suggested that China should reinforce the remedial function of performance claims between states.With respect to methods of remedies,in addition to the adjudicatory system,it is necessary to strengthen the function of such alternative systems as investment mediation and dispute prevention,so as to satisfy in a more flexible way the admission claims of foreign investors.