欧盟干预内部投资仲裁的国际法批判与中国因应

An International Law Critique of EU Interventions in Intra-EU Investment Arbitrations and Solutions from a Chinese Perspective

欧盟当前普遍干预内部投资仲裁,其对欧盟法的解释和适用多方面违反国际法。其一,欧盟单边修改《华盛顿公约》等涉第三方条约在成员国之间的适用,违反条约适用原则。其二,《里斯本条约》与欧盟法院判例溯及在先投资条约的涵盖投资,违背条约不溯及既往原则。其三,欧盟法效力优先原则的扩张使欧盟法在投资仲裁适用法中优先于投资条约,违背条约解释原则。其四,对投资仲裁裁决的国家援助干预,不符合国际经贸反补贴和救济的理论与实践,忽视投资损害赔偿的非让利性与非歧视性,不能类比贸易救济中经济赔偿补贴化的风险。欧盟的干预可能影响国际投资仲裁制度以及中国对欧盟投资者的潜在利益。除了批判欧盟做法,建议完善非争端当事方参与的条件。中国对欧盟投资者在寻求投资条约救济时可优先适用中欧投资条约,如适用欧盟内部投资条约更有利,应避免欧盟境内的仲裁地和受欧盟法约束的仲裁规则。

Since around 2006,the European Union(EU)has attempted to exclude and increasingly intervened in intra-EU investment arbitrations as a non-disputing party.Having explored how it interprets and applies EU law in such dispute settlement procedures,this article argues that the EU intervention violates international law in the following aspects.Firstly,the way it argues for the application of EU law is inconsistent with the rules on the application of treaties as it is intended to modify multilateral treaties,such as the ICSID Convention,between certain parties without fulfilling the legal conditions.Secondly,the proposed application of the Treaty of Lisbon and several CJEU decisions to investments covered by preexisting treaties runs counter to the principle of non-retroactivity,which is particularly evident in Micula v.Romania.Thirdly,the expansive application of the primacy of EU law in order to construe EU law as the preferential applicable law to investment arbitrations while it is actually auxiliary and complementary means of interpretation does not conform with the rules of treaty interpretation.Fourthly,state aid interventions in investment arbitral awards are incompatible with the anti-subsidy theory and practice under international trade framework because it ignores the non-concessional and non-discriminatory nature of compensation for investment damage and is not analogous to subsidization risk incurred by economic compensation in the context of international trade remedy.EU interventions in intra-EU arbitrations pose a threat to the credibility of the investment arbitration regime,affecting all of its beneficiaries,including Chinese investors.Moreover,Chinese companies that invest in EU countries are likely to be involved in intra-EU disputes indirectly,especially considering that Chinese renewable energy investment in the EU region has grown rapidly in recent years.Based on the above two considerations,the author,in addition to the aforementioned critique of the EU practices,proposes the following solutions from Chinese perspective:on the one hand,the conditions for non-disputing party participation need to be improved,including more consistent application of the standards,additional restrictions on repeated requests,and more substantive scrutiny of the purpose and effect of interventions;on the other hand,Chinese companies should make a balanced choice between the applicable remedies when involved in investment disputes with EU member states relating to intra-EU investments.An applicable BIT between China and an EU host state takes precedence over an intra-EU counterpart.In cases where an intra-EU arbitration is more possible or favorable,the claiming party should try to avoid places of arbitration within the EU and arbitral rules governed by EU law.