投资争端预防机制的国际经验及启示——兼评《外商投资法》投诉机制的完善

International Experiences and Lessons of Investment Dispute Prevention Mechanism:Comment on the Improvement of the Complaint Mechanism of Foreign Investment Law

国际投资争端解决机制缺陷使各国将重心从投资争端解决前移到投资争端预防。各国预防投资争端的经验表明,应当以明确的国内法或国际法作为法律依据,建立高级别的权威组织架构,提高预防措施的强制力,才能有效发挥预防投资争端的作用。我国投资争端预防机制主要体现于外商投资投诉工作。《外商投资法》投诉机制的落实,需要通过配套相应法律规范,并解决组织架构搭建、处理纷争范围等问题。我国可以借鉴秘鲁、韩国、埃及等国投资争端预防的经验,建立全国统一的外商投诉信息平台,加大投诉机构工作方式权限,提高投诉决定对政府机构的约束力。

The defects of the international investment dispute settlement mechanism have made many countries shift their focus from settlement to prevention of investment disputes. The experiences of some countries in preventing investment disputes shows that only by taking explicit national or international laws as the legal basis, establishing a high-level authoritative organization and enhancing the coercive force of preventive measures, can the role of preventing investment disputes be effectively played. China’s investment dispute prevention mechanism is mainly reflected in foreign investment complaint mechanism. The implementation of the complaint mechanism of China’s Foreign Investment Law requires relevant supporting regulations to solve the problems such as the establishment of organizational structure, scope of disputes as well as strength of the mechanism. China could learn from the experiences of Peru, Korea, Egypt and other countries, so as to establish a unified information platform for investors to complain, to increase the working mode and authority, and to improve the binding force of complaint decisions on governmental agencies.