国际投资仲裁第三方资助信息披露路径探析——基于东道国利益分析

Analysis on the Information Disclosure Path of Third-Party Funding in International Investment Arbitration—Based on the Analysis of the Interests of the Host Country

第三方资助会对东道国公共利益、经济利益和公正利益造成不利影响。基于东道国利益,如何对第三方资助信息进行有效披露是亟需解决的问题。但通过对现有国际投资仲裁规则的考察发现,第三方资助信息披露的具体规则总体呈现出模糊甚至空白的特征。资助者与投资者关系的披露程度、资助者与仲裁员是否具有潜在的利益关联及仲裁费用如何分配等系列尚未明确因素,促使投资者利用规制空白对东道国频繁提起仲裁,不可避免地对国际投资仲裁程序与东道国利益造成严重影响。为了保证投资仲裁程序在第三方资助的参与下保持高效运行,应当明确投资者承担强制披露义务及有关披露的具体事项,健全仲裁费用制度,强化仲裁员的独立性和公正性意识。

Third-party funding will adversely affect the public interests, economic interests and just interests of the host country. Based on the interests of the host country, how to effectively disclose the third-party funding information is an urgent problem. However, through the investigation of the existing international investment arbitration rules, it is found that the specific rules of third-party funded information disclosure are generally vague or even blank. A series of unclear factors, such as the degree of disclosure of the relationship between funders and investors, whether there is a potential interest relationship between funders and arbitrators, and how to allocate arbitration fees, have prompted investors to take advantage of regulatory gaps to frequently file arbitration against the host country, which inevitably has a serious impact on the international investment arbitration procedure and the interests of the host country. In order to ensure the efficient operation of the investment arbitration procedure with the participation of the third party, it is necessary to clarify the compulsory disclosure obligations of investors and the specific matters related to disclosure, improve the arbitration fee system, and strengthen the arbitrator’s awareness of independence and impartiality.