缅甸中资企业投资争端解决法律问题研究

Legal Issues Concerning the Settlement of Investment Disputes among Chinese Enterprises in Myanmar

构建中缅命运共同体的声明使两国关系迈向了新篇章。除了高层间的密切交流,两国民间也因地理位置、历史传统等一直交往甚密。中国是缅甸第二大投资来源国,在缅累计投资额已近300亿美元,但中资企业在缅投资也遇到很大阻碍,这与中缅投资争端的特殊性有关。外交手段等传统方式的局限性导致部分投资项目搁置多年。中国与缅甸加入的东盟之间有自贸区协定及投资协议,中缅之间也有双边投资协定,但它们并不能有效解决两国之间的投资争端。缅甸国内的法治状况令中资企业的本地救济不乐观;我国对境外投资以事前监管为主,但对解决已发生的中缅投资争端尚无法律规范。为此,可在中国—东盟自贸区投资争端解决机制的基础上,以替代性争端解决措施为主要手段,结合双边投资协定中的相关约定,完善两国国内法以助于问题的解决。

The statement on building a community of shared future between China and Myanmar has ushered in a new chapter in bilateral relations.In addition to state leader communication,the two countries have also maintained close people-to-people exchanges due to geographical location,historical traditions and other factors.China is the second largest source of investment in Myanmar,with a cumulative investment of nearly us$30 billion,while Chinese companies are also facing big obstacles to investing in Myanmar,which is related to the particularity of the investment dispute between Chinese companies and Myanmar.The limitations of traditional approaches,such as diplomacy,have kept some investment projects on hold for years.China and ASEAN,to which Myanmar is a member,have free-trade agreements and investment agreements.China and Myanmar also have bilateral investment agreements,nevertheless they do not effectively resolve investment disputes between the two countries.At the same time,the rule of law in Myanmar does not make it easy for Chinese companies to be bailed out.In contrast,China’s overseas investment is mainly regulated in advance,however there are no legal norms for the settlement of the existing China-Myanmar investment disputes.Therefore,on the basis of the investment dispute settlement mechanism of China-ASEAN free trade area and the relevant provisions in the bilateral investment agreement,the domestic laws of the two countries can be improved to solve the problem by taking the alternative dispute resolution measures as the main means.