非ICSID投资条约仲裁司法审查的困境及其应对——以法院对投资条约的解释与适用为视角

The Dilemma in Judicial Review of Non-ICSID Investment Treaty Arbitration and Response Thereto:From the Perspective of Treaty Interpretation and Application by Courts

“世能案”等案例显示,非ICSID投资条约仲裁的司法审查面临质疑和争论,出现了一定的困境。从相关国内法院对案涉投资条约的解释与适用的视角出发可以发现,司法审查法院解释与适用投资条约的主体资格正当性不足,对投资条约解释和适用的公正性存疑,对条约法相关原则有所离。可见,一方面,因为完全套用商事仲裁司法审查的法律制度,非ICSID投资条约仲裁司法审查法院对于相关国际投资条约的解释和适用面临制度上的困境;另一方面,有关国家法院的商事化立场又加剧了这种制度在实践中的困境。对非ICSID投资条约仲裁的改革,不应忽视其司法审查中的条约解释与适用问题。我国作为投资条约缔约国的具体应对建议包括改进投资条约关于非ICSID仲裁的仲裁地选定程序的规定,在投资条约中规定缔约国对条约的联合解释应约束仲裁的司法审查机关,推动建立全球性的国际投资条约仲裁裁决审查机制或上诉机制等。

As demonstrated by some high-profile cases like"the Sanum Case",the current regime of judicial review of non-ICSID investment treaty arbitration is faced with doubts and controversies and thus is in a dilemma to some extent.Controversies arising from the decisions of national courts mainly focus on decisions on the interpretation and application of relevant international investment treaties.Analyzing this issue from the perspective of the interpretation and application of investment treaties in question by courts of judicial review helps us to understand the dilemma and to think about how relevant states,including China,could respond to it.By analyzing the issue from the perspective of the interpretation and application of investment treaties by national courts,we can see that,on the one hand,due to the application of commercial arbitration judicial review legal system,courts of judicial review face institutional difficulties in interpreting and applying relevant international investment treaties,as they do not have sufficient legitimacy and neutrality to be subjects of interpretation and application of international investment treaties.On the other hand,the commercialized position of the relevant national courts exacerbates the difficulties faced by this regime in practice and raises doubts about the impartiality of the interpretation and application of investment treaties by judicial review courts and their conformity with relevant principles of the law of treaties.To reform the non-ICSID investment treaty arbitration system,we should pay attention to the issue of treaty interpretation and application in the process of judicial review.Under the current legal framework of non-ICSID investment treaty arbitration,relevant states,including China,should attach more importance to and strengthen the regulation of judicial review of non-ICSID investment treaty arbitration by international investment treaties that they have concluded.Specific recommendations for states concerned to respond to this dilemma include:improving investment treaty provisions on the procedure for the selection of the place of arbitration for non-ICSID investment arbitration;providing in investment treaties that the joint interpretation of treaties by signatory states shall be binding on judicial review courts of non-ICSID investment arbitration;promoting the establishment of a global mechanism for the review of or appeal against international investment treaty arbitration awards;encouraging national courts to reach a consensus on the principles and rules to be observed in the interpretation and application of treaties in the judicial review of non-ICSID investment arbitration;and stipulating in investment treaties that treaty-based investorstate disputes will no longer be resolved through non-ICSID arbitration,namely,the legal system of commercial arbitration will only apply to contractual disputes between states and investors.