海外投资中东道国承诺违约的法律应对--以投资仲裁中合理期待原则适用为视角

Legal Responses to the Breach of Host Country's Commitments in Overseas Investment:Based on the Application of Legitimate Expectations in Investment Arbitration

合理期待原则在投资仲裁实践中独立发展且适用频繁。适用该原则需首先判定投资者是否形成值得条约保护的期待。仲裁实践中可依据对东道国具体承诺明确性要求不同,将其届分成严格、均衡、宽泛三种路径。在缺乏明确承诺的情况下,仲裁庭依然判定投资者形成合理期待的裁决路径引发巨大争议。本文结合该路径下两起晚近典型案例,考察仲裁庭如何援引先例和学说,全面结合事实,通过判断承诺具体性,进一步厘清投资者合理期待和东道国正当规制权边界。中国未来应更加关注投资仲裁实践的演进和发展,提倡适用均衡路径,以提升国内治理水平,维护海外投资利益。

The principle of legitimate expectations has developed independently and been frequently applied in investment arbitration practice.To apply this principle,it is necessary to first determine whether an investor has formed an expectation worthy of treaty protection.In arbitration practice,according to different requirements for the clarity of specific commitments made by the host country,it can be divided into three paths:strict,balanced,and broad.In the absence of clear commitments,the path by which the arbitration tribunal still determines that an investor has formed a legitimate expectation has sparked great controversy.This article examines two recent typical cases under this path,investigates how the arbitration tribunal cites precedents and doctrines,comprehensively combines facts,and further clarifies the boundaries between the legitimate expectations of investors and the legitimate regulatory rights of the host country by judging the specificity of commitments.In the future,China should pay more attention to the evolution and development of investment arbitration practice and advocate the application of the balanced path to improve domestic governance levels and safeguard overseas investment interests.