China should prioritize the establishment and enhancement of a third-party funding system.It should actively refine the existing arbitration rules,addressing any loopholes in the current regulatory framework.Comprehen...China should prioritize the establishment and enhancement of a third-party funding system.It should actively refine the existing arbitration rules,addressing any loopholes in the current regulatory framework.Comprehensive measures should be implemented to regulate third-party funding,aligning with international trends.This is crucial not only to safeguard the foreign investment of the Chinese government and enterprises but also to position China as a globally influential arbitration center.展开更多
As one of the mainstream dispute resolutions,arbitration is broadly used in settling Investor-State disputes for its unique advantages compared with other mechanisms.In the past,investment treaty arbitration was in th...As one of the mainstream dispute resolutions,arbitration is broadly used in settling Investor-State disputes for its unique advantages compared with other mechanisms.In the past,investment treaty arbitration was in thrall to the confidentiality principle of commercial arbitration:neither the submission nor the award of arbitration can be disclosed to the public.This paper attempts to show how the wind blows today.Adoption of the UNCITRAL Transparency rules promotes transparency in investment treaty arbitration,and brings both opportunity and challenge to China as well.Whether China shall support transparency in investment treaty arbitration?It is not an easy question to answer given the duplex roles of China as both source and recipient of FDI today.It is more complex when disputes arise between China and its biggest partner:Africa.This paper starts by reviewing the development of commercial cooperation between China and Africa and the possible ways of settling investment disputes in the continent.It is found out that arbitration is a more appropriate mechanism for Chinese investors to resolve their investment disputes in Africa.This paper then illustrates the increasingly transparency in investment treaty arbitration and discusses how much transparency China shall accept in investment treaty arbitration and whether China shall advocate transparency of arbitration in Sino-Africa BITs.In conclusion,it is suggested that China shall take a cautious attitude towards transparency trend in investment treaty arbitration,as it is not ready for accepting a high-level transparency in investment treaty arbitration.展开更多
The issue of corruption has attracted increasing attention in the study and practice of international investment law during recent years.After taking prudent consideration of the corruption defense invoked by the host...The issue of corruption has attracted increasing attention in the study and practice of international investment law during recent years.After taking prudent consideration of the corruption defense invoked by the host states in some international investment arbitration cases involved with corruption,International Center for Settlement of Investment Disputes(ICSID)tribunals accordingly determined the final awards.However,some parts of the arbitral jurisprudence aroused strong criticism,especially with regard to the ICSID tribunals’reasoning that arbitrators have no jurisdiction over corruption-tainted international investments.The ICSID tribunals are legitimately supposed to exercise their jurisdiction and are lawfully obliged to probe into the nature of corrupt activities.The tribunals are strongly expected to adopt a balanced approach in deciding the merits and fairly weighing the obligations,rights,and interests of both disputing parties.It is preferable to strengthen the collaborative interaction between ICSID proceedings and domestic anti-corruption enforcement mechanisms when it comes to combating corrupt international investment activities.Existing international treaties(or specific treaty provisions)on combating corruption in international business transactions and calling for international cooperation,alongside domestic anti-corruption enforcement legislation,have actually laid solid legal foundations for the establishment of such an anti-corruption coordinative mechanism between ICSID and domestic corruption regulatory authorities on the global level.展开更多
The discretionary decisions can affect the factual conclusions and hence result in unfairness to one party in a particular case.Understanding that tribunals are always bound to conduct the procedure fairly and within ...The discretionary decisions can affect the factual conclusions and hence result in unfairness to one party in a particular case.Understanding that tribunals are always bound to conduct the procedure fairly and within the limits of certain public policy,a careful examination of these principles to ensure the tribunals staying in course should be warranted.The development of evidentiary rules in investor-state arbitration is bifurcated.On the one hand,significant development has been made with respect to the rules of the taking of evidence as a result of the practice of international tribunals and by various codification efforts.On the other hand,lack of systematic and concrete rules binding tribunals on the exercises of determination of facts,allocating burden of proof and weighing of probative value of evidence makes the result of fact-finding unpredictable,inconsistent and sometimes even arbitrary.International tribunals have considerable discretion in dealing with presented evidence by applying the evidentiary rules they consider fit.This article reviews the principles relating to burden and standard of proof as reflected in international investor-state arbitration.Significant divergences can be discerned in practice.However,this author does not believe that introducing specific and binding evidentiary rules is a solution,considering the fundamental differences between arbitration and litigation.What the author advocates is the development of some guideline rules to ensure greater certainty,while preserving the flexibility of the arbitral process.The balance aims to achieve a level of"guided flexibility"to reduce uncertainties in factual decisions and to endow the less-experienced tribunals with some guidance.展开更多
基金National Social Science Fund project(23BGL052)Shandong Key R&D Program(Soft Science Project)(2023RKY03009)Qingdao Social Science Fund Project(QDSKL2301121)。
文摘China should prioritize the establishment and enhancement of a third-party funding system.It should actively refine the existing arbitration rules,addressing any loopholes in the current regulatory framework.Comprehensive measures should be implemented to regulate third-party funding,aligning with international trends.This is crucial not only to safeguard the foreign investment of the Chinese government and enterprises but also to position China as a globally influential arbitration center.
文摘As one of the mainstream dispute resolutions,arbitration is broadly used in settling Investor-State disputes for its unique advantages compared with other mechanisms.In the past,investment treaty arbitration was in thrall to the confidentiality principle of commercial arbitration:neither the submission nor the award of arbitration can be disclosed to the public.This paper attempts to show how the wind blows today.Adoption of the UNCITRAL Transparency rules promotes transparency in investment treaty arbitration,and brings both opportunity and challenge to China as well.Whether China shall support transparency in investment treaty arbitration?It is not an easy question to answer given the duplex roles of China as both source and recipient of FDI today.It is more complex when disputes arise between China and its biggest partner:Africa.This paper starts by reviewing the development of commercial cooperation between China and Africa and the possible ways of settling investment disputes in the continent.It is found out that arbitration is a more appropriate mechanism for Chinese investors to resolve their investment disputes in Africa.This paper then illustrates the increasingly transparency in investment treaty arbitration and discusses how much transparency China shall accept in investment treaty arbitration and whether China shall advocate transparency of arbitration in Sino-Africa BITs.In conclusion,it is suggested that China shall take a cautious attitude towards transparency trend in investment treaty arbitration,as it is not ready for accepting a high-level transparency in investment treaty arbitration.
基金funded by the 2018 Hunan Provincial Innovative and Open Project“‘Abuse of Process'in International Investment Arbitration and Regulation”(18K022)2019 Hunan Provincial Social Science Union Project“Innovation of the BITs between China and African Countries under the BRJ”(XSP19YBZ178).
文摘The issue of corruption has attracted increasing attention in the study and practice of international investment law during recent years.After taking prudent consideration of the corruption defense invoked by the host states in some international investment arbitration cases involved with corruption,International Center for Settlement of Investment Disputes(ICSID)tribunals accordingly determined the final awards.However,some parts of the arbitral jurisprudence aroused strong criticism,especially with regard to the ICSID tribunals’reasoning that arbitrators have no jurisdiction over corruption-tainted international investments.The ICSID tribunals are legitimately supposed to exercise their jurisdiction and are lawfully obliged to probe into the nature of corrupt activities.The tribunals are strongly expected to adopt a balanced approach in deciding the merits and fairly weighing the obligations,rights,and interests of both disputing parties.It is preferable to strengthen the collaborative interaction between ICSID proceedings and domestic anti-corruption enforcement mechanisms when it comes to combating corrupt international investment activities.Existing international treaties(or specific treaty provisions)on combating corruption in international business transactions and calling for international cooperation,alongside domestic anti-corruption enforcement legislation,have actually laid solid legal foundations for the establishment of such an anti-corruption coordinative mechanism between ICSID and domestic corruption regulatory authorities on the global level.
文摘The discretionary decisions can affect the factual conclusions and hence result in unfairness to one party in a particular case.Understanding that tribunals are always bound to conduct the procedure fairly and within the limits of certain public policy,a careful examination of these principles to ensure the tribunals staying in course should be warranted.The development of evidentiary rules in investor-state arbitration is bifurcated.On the one hand,significant development has been made with respect to the rules of the taking of evidence as a result of the practice of international tribunals and by various codification efforts.On the other hand,lack of systematic and concrete rules binding tribunals on the exercises of determination of facts,allocating burden of proof and weighing of probative value of evidence makes the result of fact-finding unpredictable,inconsistent and sometimes even arbitrary.International tribunals have considerable discretion in dealing with presented evidence by applying the evidentiary rules they consider fit.This article reviews the principles relating to burden and standard of proof as reflected in international investor-state arbitration.Significant divergences can be discerned in practice.However,this author does not believe that introducing specific and binding evidentiary rules is a solution,considering the fundamental differences between arbitration and litigation.What the author advocates is the development of some guideline rules to ensure greater certainty,while preserving the flexibility of the arbitral process.The balance aims to achieve a level of"guided flexibility"to reduce uncertainties in factual decisions and to endow the less-experienced tribunals with some guidance.
