投资规制权视野下东道国国家责任的构成与判定

The Constitution and Determination of the State Responsibility of Host State from the Perspective of the Right to Regulate Foreign Investment

国际投资法上国家责任构成与判定的不确定性,增加了东道国行使规制权的障碍和风险。国家责任不同于合同责任,国家责任除导致经济上的负担之外,还影响着东道国作为主权国家的国际形象和国际地位。明确东道国国家责任的构成要件有助于东道国正确行使投资规制权。东道国国家责任需要以《国家对国际不法行为的责任条款草案》为基本参照,同时结合国际投资法上国家责任的特殊性,从“可归因于国家”和“国际不法行为”两个构成要件入手进行分析。国家主体身份具有二重性,区分东道国的主权行为和合同行为是“可归因于国家”要件的关键问题。东道国是否存在“国际不法行为”则需结合公共利益的“价值位阶”和国际最低待遇标准进行讨论。区分东道国主权行为与合同行为,应逐步成为国际投资仲裁和国际社会的共识。当前,国际社会呈现国家“回归”的趋势,东道国国内法在判断国际最低待遇标准问题上应起到更重要的作用。

In international investment law,the uncertainty of the constituent elements of the state responsibility leads to obstacles to and risks in the exercise of the regulatory right of the host state.State responsibility is different from contract liability in that it has a significant impact on the international image and status of the host state as a sovereign country in addition to economic burden.The state responsibility of a host state should be based on the Draft Articles on Responsibility of State for Internationally Wrongful Acts and the particularity of the responsibility of a state in international investment law and focus on two constituent elements,namely“the attributability to the state”and“an international wrongful act”.A host state has a dual identity:it is a subject of public law when it violates a treaty,but it is a subject of private law when it breaches a contract,and the two subject identities are inter-convertible according to specific circumstances in international investment arbitration practice.The dual identity leads to the uncertainty of the element of“the attributability to the state”in the determination of state responsibility.The idea of distinguishing between a contract act of the host state and a sovereign act of the host state should become the consensus of the international community and be implemented in the international investment arbitration practice and the reformation of international investment treaties.Public interest and the international minimum treatment standard are the important contents of the analysis of the element of“an international wrongful act”.Public interest is often regarded as an exception to compliance with the international obligations of the host state.The hierarchy of the public interest concerns the determination of the host state’s responsibility.The expropriation measure taken by a host state for an essential public interest should not be deemed as a violation of the international obligation even if it provides no compensation.And the theory of corrective justice and distributive justice plays an important role in understanding the relationship between the hierarchy of public interests and state responsibility.The uncertainty of the international minimum treatment standard leads to obstacles to the determination of the violation of the international obligation of the host state.In determining the international minimum treatment standard,consideration should be taken of the acceptance by the majority of the countries in the international community,especially the opinions of developing countries.Meanwhile,in the context of the trend towards,the“back to the state”,the international community put more emphasis on the host state’s right to regulate.The domestic law of the host state should play a more important role in the judgement of the international minimum treatment standard.The improvement of the system of state responsibility is the basis of the implementation of the Foreign Investment Law of the People’s Republic of China and concerns investment protection as well as the boundary of the right to regulate foreign investment.