來源︰ www.sblunwen.com 作者︰anne 發布時間︰2019-08-06 論文字數︰0字
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1. Introduction介紹 投資者-國家爭端解決(ISDS)是投資者與國家之間的爭端解決機制。當爭議出現時,特別是所謂的歧視行為發生時,投資者可以根據ISDS制度起訴國家。ISDS在幾乎所有雙邊投資條
1. Introduction介紹
投資者-國家爭端解決(ISDS)是投資者與國家之間的爭端解決機制。當爭議出現時,特別是所謂的歧視行為發生時,投資者可以根據ISDS制度起訴國家。ISDS在幾乎所有雙邊投資條約中都受到管制,這是國際法下的一個有用工具。我們可以在許多條約中找到相關的ISDS條款,如北美自由貿易協定(NAFTA)第11章、擬議的跨太平洋伙伴關系協定(TPP)第9章、全面經濟貿易協定(CETA)第3和第4節。除條約外,ISD還可以在許多國際協定中找到。例如,能源憲章條約等,投資者來自的國家稱為“母國”,投資者投資的國家稱為“東道國”。在雙邊條約或其他條約中,母國和東道國同意ISDS,如果東道國侵犯了投資者從條約中獲得的權利,投資者可以對東道國提起仲裁。有許多機構設有仲裁庭,例如世界銀行投資爭端國際結算中心(ICSID)、香港國際仲裁中心、國際商會、倫敦國際仲裁法庭等。C.
ISDS在國際投資和貿易中發揮著重要作用。設置ISDS的初衷是為了保護投資者的利益。然而,近年來,東道國在實施人權、環境保護和公共衛生等方面的改革和政策方案時遇到了許多問題,因此引發了許多批評。鑒于ISDS的重要作用,不恰當地說,這種機制是否合理。ISDS作為投資者與東道國之間的糾紛解決機制,有其自身的優勢,也有其局限性。本文將對ISDS機制進行批判性的探討,並對ISDS機制和作為ISDS改革和完善的投資法院制度進行分析。
investor state dispute settlement (ISDS) is a dispute resolution system between investors and countries. When dispute arises, especially alleged discriminatory practices happen, investors can sue countries under the system of ISDS. ISDS was regulated in almost all the bilateral investment treaties, which is an useful tool under international law. We can find relevant ISDS provisions in many treaties, such as Chapter 11 of North American Free Trade Agreement (NAFTA), Chapter 9 of the proposed Trans-Pacific Partnership Agreement (TPP), Sections 3 and 4 of Comprehensive Economic and Trade Agreement (CETA). Besides treaties, ISDS can also be found in many international agreements. For example, the Energy Charter Treaty, etc. Country where investor comes from is called the “home state”, country where investor invests is called the “host state”. In the bilateral treaties or other treaties, home state and host state agreed to ISDS, if the host state violate a right which investor obtained from the treaty, the investor may bring an arbitration against the host state. There is a number of institutions which have arbitral tribunals, such as the International Centre for Settlement of Investment Disputes of the World Bank (ICSID), the Hong Kong International Arbitration Centre, the International Chamber of Commerce, the London Court of International Arbitration, etc.
ISDS plays an important role in international investment and trade. The original purpose of setting ISDS is to protect investor’s interests. However, in recent years, host state encounters many problems when implementing reforms and policy programs related to human rights, environmental protection and public health;  therefore a lot of criticism has arisen.  Given the important role of ISDS, it is not proper to say this mechanism is justified or not. ISDS has its own advantages, it also has limitations as a dispute resolution mechanism between investors and host state. In this essay, it is going to discuss the ISDS mechanism critically, and analyze ISDS mechanism and investment court system which is regarded as a reform and improvement of ISDS. 
 
2. Critical analysis of investor state dispute settlement mechanism投資者-國家爭端解決機制評析
In recent years, the number of arbitration cases filed under the investor state Dispute Settlement mechanism (ISDS) has been increasing year by year. The problems of the dispute settlement mechanism and the disputes caused by it have also been increasing. The mechanism faces pressure from various aspects. At present, the disputes mainly focus on the following aspects.
Firstly, investors have too much power while the sovereign interests of the host countries are easily affected. Taking Germany as an example, the Vattenfall Group of Sweden, an investor, submitted its dispute with the German government for arbitration in 2009 and 2012 respectively. As early as 2004, when Vattenfall intended to invest in Germany to establish a coal thermal power plant, the project was opposed by various environmental groups and local residents. The local opposition organizations believed that the establishment of the power plant would have an impact on the environment of the Elbe River. However, the Hamburg government finally reached an agreement with Vattenfall, permitting Vattenfall to establish and operate the coal thermal power plant in the region to provide electricity and heat to the locals. Although the government agency of Hamburg eventually issued the relevant operating licenses to Vattenfall in 2008, Vattenfal was required to ensure the Elbe River's water to reach a certain degree of quality. In this regard, Vattenfall believed it was inconsistent with the terms of the contract it signed with the government of Hamburg. Therefore, Vattenfall submitted the dispute to the arbitration institution in 2009, claiming that the German government, the host country of its investment, had violated The Energy Charter Treaty and demanding compensation from the government in accordance with the treaty.  This is the first case that Germany was brought to the arbitration institution as the host country based on the ISDS under the signed treaty. There are many such cases, and while most of them concluded with reconciliation, the cases have also led the German government and other EU member states to re-examine the ISDS and try reforms. 
Because it is usually agreed in the terms of ISDS that direct investors whose rights are violated could sue as plaintiffs, but the host countries are not given the equal rights as the mechanism is originally designed to protect the rights of private investors, thus, the host countries are often in a very passive situation. In particular, in recent years, the above-mentioned cases increased continuously as many governments successively promulgated laws, regulations and policies aimed at protecting public health and rights.
Secondly, the contradiction between private property and public interests is even more prominent. The number of cases involving the public interests of the host countries has been gradually increasing. However, analyzing the existing arbitration cases, we can find that although the rulings of the arbitral tribunals were not 100% supportive of investors, their basic position still tended to be that “the protection of private property is sacred and inviolable”. The public interests of the host countries often involve labor rights and interests, environmental protection, public health, etc., such problems make the host countries sometimes have to consider changing the relevant national policies. When such policies conflict with the interests of private investors, the conflict between public interests and private property will further increase.
Thirdly, the rulings of independent tribunals lack consistency and the principle of "stare decisis" has not been established yet. According to the investment agreements of different countries, under the terms of the ISDS, the different choice of arbitration institutions will result in big difference of the composition of the arbitral tribunals. Although all the arbitral tribunals follow the provisions of Article 23 and Article 24 of the Vienna Convention on the Law of Treaties in its interpretation of the treaty, consistent rulings for similar legal issues or implementation are lacked, the choice of temporary arbitration and arbitrators is relatively free, the provisions with regard to the withdrawal, recognition and enforcement of the arbitral awards are also different. As the current commercial arbitration usually adopts the operating rule of "final ruling" and the optional system of arbitrators, the arbitration model under the ISDS mechanism lacking the appeal mechanism can not solve the above problems fundamentally. Meanwhile, because of the confidentiality, dispersibility and international character of the arbitration cases, it is difficult to establish a principle that is similar to "stare decisis" under the domestic judicial system.
 
3. Reform of investment court system投資法院制度改革
In 2015, the Europe Union (EU) released draft proposals for investment chapters with the United States for Transatlantic Trade And Investment Partnership (TTIP) negotiations followed by amendments to the investment chapter entered into CETA several years ago. And Free Trade Agreement (FTA) signed with Vietnam including investment chapters and the reformed investor state dispute Resolution mechanism. Namely, establish a permanent Investment Court System (ICT), including two procedures for ordinary courts and appellate courts. Replace the most common investment arbitration system currently prevailing, the EU also seeks to extend the system to other countries that negotiate investment agreements or free trade agreements, include China currently negotiating BITs with. Under policy claims for global investment in sustainable development and establishing harmonized international investment models, recommendations of the International Investment Arbitration Tribunal (IIA) regime comply with this trend. Under the circumstances, traditional international investment disputing settlement system needs reform and it is necessary to establish ICT mechanism after careful research. 
From the perspective of design framework and operational practice of current ICT mechanism, it has already formed a complete operating procedure but has not been operated in practice. Theoretically speaking the following points deserves attention.
In ICT system, EU proposes to apply other alternative friendly dispute settlement approaches at the beginning of system, especially emphasizes mediation, rapid trial procedure, consultation etc. These measures promote parties to dispute mediation in non-litigation friendly manner which avoids large amounts of time and money consumed by investors and host countries during later litigation procedures. On the other hand, it also accords with the trend towards amicable dispute settlement tendency currently. In order to avoid abusive litigation, EU has done much effort but failed to incorporate "exhaustion of local remedies" into agreements, which partly fails to restrict foreign investor rights. In current disputes, excessive rights granted to foreign investors, particularly those capable of prosecuting host countries directly within international arbitral institutions without domestic proceedings, have aroused public dissatisfaction. EU restrictions imposed on conflicts between investors and host countries did not play a very restrictive role.
There are two points in the ICT System. Firstly, it reforms arbitrators selection system and qualification system; secondly, including appeal mechanism. This is the first time EU broke the traditional practice of choosing arbitrator by parties in arbitration settlement, establishing standing lists and a stricter qualification requirements for arbitrators can greatly enhance professionalism and credibility throughout the entire investment court system. Moreover, controversial appeal mechanism are also incorporated into ICT system, which indirectly confirming the binding nature of appellate bodies decisions. It is believed that EU reform will bring assurance to referee consistency and predictability under ICT system based on the experience of WTO Appellate Court.
Finally, although the ICT system provides exceptions to litigation requests based on protection of legitimate public interests (e.g. protection of public protection, public health etc.), there remains considerable discretion for arbitrators to explain "public interests". I believe that host country should retain the interpretation of "public interest", and try their best to define the extension meaning of “public interest” clearly in negotiating. 
 
4. Conclusion總結
ISDS claims raised by investors has greatly increased in the late 1990s, which draw dramatic public attention and sharply criticism. Such as NAFTA claims which happened in the late 1990s and against the government of the United States, the Vatterfall claims against the German government, and the Philip Morris claim against the Australia government in 2011. 
In recent years, ISDS stipulated in international investment treaties or free trade agreements essentially internationalize the investment dispute resolution mechanism between investors and host state. For host countries, especially for developing host countries, the international ISDS mechanism certainly help to strengthen the protections of investors, which can also create a conductive atmosphere to attract foreign capital, so as to promote the development of the economy. However, this mechanism is also a double-edged sword, for host states’ management on foreign capital, society, environment, public resources, it will bring challenges and profound influence. 
In fact, for investment dispute between investors and host state, the resolution mechanism would better to adopt two strategies: on the one hand, to make good use of international arbitration mechanism; on the other hand, to take full advantage of domestic dispute settlement mechanism. Therefore, investors and host state should actively promote the reform and perfection of ISDS, including enhancing the transparency of ISDS mechanism, set up supervision and management system, enhance the arbitrator team, properly solve all kinds of substantial issues and procedure issues, to maintain host state’s rights of regulation of public interests. Investors and host state should also improve and perfect the local dispute settlement system and make it trustworthy by foreign investors. As long as there is a transparent, reliable, and objectivelocal settlement mechanism, it can prompt foreign investors to settle the dispute locally, so as to avoid international litigation as much as possible, saving or reducing cost. This is the most favorable and fundamental solution for host states.
To sum up, investor state dispute settlement is important for cross-boarder investment and trade, which has played critical role in promoting global economy and protecting interests of foreign investors. Even this mechanism encountered much debates and criticism in recent years, its advantages and merits cannot be denied. Investment court is a reform and improvement on the basis of ISDS, however it also has limitations. In this essay, it holds that it is not proper to discuss the ISDS mechanism justified or not, what the investors and host states need to do is: to reform ISDS mechanism, to perfect investment court system, and to improve local dispute settlement mechanism. Only in this way, foreign investors and host states can finally reach a win-win situation. 
 
Bibliography注解
Franck, S. D. (2007). "Empirically Evaluating Claims About Investment Treaty Arbitration."
North Carolina Law Review, 86.
Franck, S. D. (2009). "Development and Outcomes of Investment Treaty Arbitration."Harvard International Law Journal, 50: 435-489.
Jean E. Kalicki; Anna Joubin-bret (2015)Reshaping the Investor-state Dispute Settlement System: Journeys for the 21st Century. Martinus Nijhoff . 
Newcombe, Andrew Paul; Paradell, Lluís (2009). Law and practice of investment treaties: standards of treatment. Wolters Kluwer Law & Business.
Smarnada Miron. (2014). “The Last Bite of BITs - Supremacy of EU Law versus Investment Treaty Arbitration”, European Law Journal, 20(3): 332-345.

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