投资仲裁裁决执行的国家豁免困境、成因及出路

Immunity of State Property in the Execution of Investor-State Arbitration Awards:Execution Dilemmas,Causes and the Way out

《华盛顿公约》和《纽约公约》为投资仲裁裁决提供了强大的执行保障机制,但二者均未解决仲裁裁决的国家财产执行豁免问题。豁免对投资仲裁裁决的顺利执行构成严峻挑战,已被视为裁决执行的"致命弱点"。不成体系的豁免制度使裁决在各国的执行具有不一致性与不可预测性,政治因素和外交压力的干扰使得情况更加复杂。执行豁免弃权例外与商业资产例外在实践中均被严苛适用。除投资者采取相应措施防范执行豁免阻碍外,问题的有效解决可从法律性解决和市场性救济两方面入手。在《联合国国家及其财产管辖豁免公约》尚未生效的情况下,倡导建立体现平衡理念的豁免示范法将为统一各国规则和实践提供指引。此外,裁决后和解、裁决转让、发挥世界银行促进作用等市场性救济途径不失为可取的补充性方案。

The ICSID Convention and the New York Convention provide strong safeguards for the enforcement of Investor-State arbitration awards, but neither addresses the issue of immunity of state property from enforcement of arbitral awards. Immunity poses a serious challenge to the successful enforcement of Investor-State arbitration rulings and has been identified as the Achilles heel. Execution of awards is full of inconsistency and unpredictability because of the unstructured system of State immunity, which is further complicated by political factors and the interference of diplomatic pressure. Both the waiver of immunity and the commercial property exception have been harshly applied in practice. In addition to investors taking appropriate measures to prevent impediments to immunity, an effective solution to the problem needs to be based on both legal solutions and market-based remedies. Pending the entry into force of the UN Convention on Immunity, advocating for a model law on immunity that embodies the concept of balance would provide guide for the harmonization of rules and practices of States. In addition, market-based remedies such as post-award settlement, assignment of awards, and an enhanced role for the World Bank Group are desirable complementary options.