1. Introduction介绍
投资者-国家争端解决（ISDS）是投资者与国家之间的争端解决机制。当争议出现时，特别是所谓的歧视行为发生时，投资者可以根据ISDS制度起诉国家。ISDS在几乎所有双边投资条约中都受到管制，这是国际法下的一个有用工具。我们可以在许多条约中找到相关的ISDS条款，如北美自由贸易协定（NAFTA）第11章、拟议的跨太平洋伙伴关系协定（TPP）第9章、全面经济贸易协定（CETA）第3和第4节。除条约外，ISD还可以在许多国际协定中找到。例如，能源宪章条约等，投资者来自的国家称为“母国”，投资者投资的国家称为“东道国”。在双边条约或其他条约中，母国和东道国同意ISDS，如果东道国侵犯了投资者从条约中获得的权利，投资者可以对东道国提起仲裁。有许多机构设有仲裁庭，例如世界银行投资争端国际结算中心（ICSID）、香港国际仲裁中心、国际商会、伦敦国际仲裁法庭等。C.
ISDS在国际投资和贸易中发挥着重要作用。设置ISDS的初衷是为了保护投资者的利益。然而，近年来，东道国在实施人权、环境保护和公共卫生等方面的改革和政策方案时遇到了许多问题，因此引发了许多批评。鉴于ISDS的重要作用，不恰当地说，这种机制是否合理。ISDS作为投资者与东道国之间的纠纷解决机制，有其自身的优势，也有其局限性。本文将对ISDS机制进行批判性的探讨，并对ISDS机制和作为ISDS改革和完善的投资法院制度进行分析。
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投资者-国家争端解决机制评析
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投资法院制度改革
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总结
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.
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