欧盟国际投资仲裁财政责任划分条例评析

Commentary on the Regulation on Apportionment of Financial Responsibility Linked to Investor-State Dispute Settlements

欧盟国际投资仲裁财政责任划分条例对欧盟及其成员国参与的仲裁案件所涉及的财政责任分配、争端处理、案件和解以及裁决与和解协议的赔偿作了详细的规定。"条例"既为欧盟及成员国参与投资仲裁,承担财政责任提供了明确而清晰的法律框架,同时也体现出欧盟想要在外国投资领域确立完全的排他性管辖权的勃勃野心。但是该"条例"并非尽善尽美,在其与有关国际责任的国际法的一致性、成员国作为应诉方的案件和解、欧盟及其成员国共同作为应诉方的责任承担以及欧盟及其成员国管辖权划分等一些问题上仍有待进一步完善。在中欧双边投资协定谈判和未来的自由贸易区协定谈判中,我国也应当借鉴欧盟签署的协定中的相关规定,就投资仲裁应诉方的确定作出相应安排,并明确欧盟及其成员国在投资仲裁中的共同的和连带的责任,最后也可以通过相应的例外条款设计保证ICSID仲裁的功用得到充分发挥。

The Regulation establishing framework for managing financial responsibility linked to investor-state dispute settlement tribunals established by international agreements to which the European Union is a party sets outs detailed provisions for the apportionment of financial responsibility,conducts of disputes,settlements of disputes,as well as the payment.The Regulation provides a clear framework for the allocations of financial responsibility between the European Union and its Member States,while demonstrates the ambition of the European Commission to acquire fully exclusive competence on foreign investment.However,such Regulation is not as sufficient as its inconsistencies with international responsibility rules and its silence on the settlements of disputes where the Member States are respondents and the allocations of financial responsibility where the EU and the Member States are the respondents.Furthermore,it would have some adverse effects on the distributions of competence between EU and the Member States.In the bilateral investment treaty negotiation and future free trade agreement negotiation with EU,China needs to make comprehensive arrangements with respect to the financial responsibility by referring to EU’s practice.The joint and several responsibilities need to be assumed.Also,exception clauses should be established to make ICSID arbitration a viable mechanism.