东道国公民群体作为第三方参与ICSID仲裁研究

Study on Group of Citizens in Country Participating ICSID Arbitration as Third Party

东道国公民群体作为第三方参与仲裁,是指当外国投资者与东道国政府之间的投资争端通过ICSID仲裁解决时,与仲裁标的或结果有利益关联性的东道国公民群体享有作为第三方参与仲裁程序维护自身合法利益的权利。东道国公民群体要求维护其在ICSID仲裁实践中被忽视和损害的合法权益是参与仲裁的根本原因,而仲裁庭为了缓解ICSID仲裁机制遭遇的公众信任不够的"正当性危机"而接受第三方有限参与仲裁则是东道国公民群体参与仲裁的契机。然而在目前的ICSID体制下,东道国公民群体参与仲裁中只享有极为有限的权利,在具体的个案实践中,也只能以"法庭之友"的模式参与仲裁,无法真正实现维权诉求。因此,如何保护在ICSID仲裁中遭受不利影响的东道国公民群体的合法利益成为国际投资仲裁领域值得深入研究的问题。

Group of citizens in host country can partially participate in arbitration as third party means, that when foreign investor and government of the host country settle the investment dispute through ICSID, group of citizens in host country who have interests in the subject or result of the arbitration are entitled with the right to participate in arbitration proceedings as third party and to protect their own legitimate interests. In recent years, the root cause of group of citizens in host country participating in arbitration is that the practices of ICSID arbitration have neglected and damaged host country's public benefits. Furthermore, ICSID has accepted that third party can partially participate in arbitration in order to settle the ‘legitimacy crisis' which shows the lack of trust from the public brought opportunities for group of citizens in host country to participate in arbitration. However, in current system of ICSID arbitration, group of citizens in host country only have extremely limited rights when participating in arbitration. In specific cases, they can only participate in arbitration as ‘Amicus Curiae' and are not able to realize their claims. Therefore, how to protect the legitimate interests of group of citizens in host country who are subjected to adverse impact in ICSID arbitration becomes a question worth further researching in the area of international investment arbitration.