ISDS语境下“干净之手”原则之再审视——兼论其与经济制裁的互动

The Clean Hands Principle Revisited in the Context of ISDS-Its Interaction with Economic Sanctions

“干净之手”原则在国际法中的发展历史反映出其规范定位尚不清晰,原因在于包括ISDS在内的国际争端解决机制对该问题缺乏系统分析与论证。“干净之手”原则在国内法中的发展及运行表明该规则构成一项“一般法律原则”,其本质在于给寻求法律救济之人施加道德要求。然而,ISDS现有实践对该原则的适用及适用后产生的法律效果均存在混乱和偏差,这进一步削减了其与经济制裁互动的现有实践价值。回归国内法理论,会发现各国阻断法规定将可能成为该原则在ISDS中与次级经济制裁互动的中间桥梁。

The history of the development of the clean hands doctrine in international law shows that its normative position has not been clear.The reason for this is the lack of systematic analysis and justification of the issue in international dispute resolution mechanisms,including ISDS.The development and operation of the clean hands doctrine in domestic law suggests that the rule constitutes a“general principle of law”and makes clear that its essence is to impose a moral imperative on those seeking legal redress.However,there is confusion and bias in the existing practice of ISDS regarding the application of the principle and its legal effects,which further diminishes the existing practical value of the interaction of the norm with economic sanctions.A return to the theory of domestic law reveals that the“blocking law”provisions of various countries will likely serve as an intermediate bridge between the interaction of the rule with secondary economic sanctions in ISDS.