投资仲裁法律适用中投资者行为与东道国措施的关系分析

Analysis of the Relationship between Investor Behavior and Host State Measures in the Application of Investment Arbitration Law

在东道国对投资者行为采取限制措施而产生的国际投资争端的法律纠纷中,投资者对东道国提出仲裁请求,东道国则提出“投资行为违法”抗辩,其实质是投资争端中责任归属问题处理的法律适用。投资仲裁中对责任归属如何确定,不仅取决于投资者行为与东道国措施之间是否存在因果关系,而且涉及东道国措施与条约义务及投资损失的关系,同时需要分析违法投资行为对投资仲裁请求的不利影响。理论上,应区分“投资产生的不合法”与“投资履行的不合法”,并允许东道国依据国内法对履行中的不合法行为进行制裁。

In the legal dispute of international investment caused by host state restrictive measures on investor behavior,when investor makes arbitration request against host state,the latter would claim the defense of“illegal investment behavior”,which is in essence the allocation of liability in the investment dispute.How to determine the liability in investment arbitration not only depends on whether there is a causal relationship between the investor behavior and the host state measures,but also involves the relationship between the host state measures and treaty obligations and investment losses.At the same time,it is necessary to analyze the adverse impact of illegal investment behavior on the investment arbitration claim.Theoretically,a distinction should be made between“illegality of investment per se”and“illegality of investment performance”,and the host state should be allowed to impose sanctions on illegality of performance according to its domestic laws.