The Research About Dispute Settlement System For International Investment

Recently, with the increasing international investments, international investment disputes have an upward tendency. International community has been trying to set up a sound and effective international investment system to settle the various disputes arising from international investment. The standardization of national treatment in international investment, reinforcement of international investment protection, establishment of International Investment Dispute Settlement Mechanism and promotion of international capital flow have always been the legal issues confronting the international community.The OCED has been studying the establishment of Multilateral Investment Agreement Framework since1990, which came without success after years of arduous negotiations. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, drafted by World Bank, only applied to settle the disputes between the host country and foreign investors in the manner of arbitration. However, Arbitration Supervision Mechanism doesn’t prescribe the arbitration appeal mechanism and the arbitration procedures lack the transparency, which makes it difficult to realize the real justice of arbitration. Therefore, ICSID couldn’t be able to settle the every dispute in an effective, reasonable and just manner.Furthermore, even the rapid rise of endorsement of bilateral and multilateral agreements, these agreements don’t play a big role in promoting the formation of International Dispute Settlement Mechanism. WTO, the most influential international economic organization worldwide, is not responsible to settle the disputes between the foreign private investors and the host country.Based on the above, this dissertation mainly discusses the International Investment Dispute Mechanism, compares and evaluates the various systems based on the introduction. It tries to figure out a set of sound settlement mechanism for the foreign private investors and host country to settle the disputes between them. Aided by the method of deductive reasoning, this dissertation mainly adopts the method of inductive reasoning and combines the methods of legal research and case study. It analyzes and discusses the issues of International Investment Dispute Mechanism, trying to combine the theory with practice and apply the theory into practice.This dissertation falls into8chapters, as following:Chapter One:Introduction. First, it introduces the background and significance of this dissertation on the study and practice of International Investment Dispute Mechanism. Next, it accounts for the writing ideas and research methods, chapter arrangement and main content of each one. At the end, it presents the innovation and deficiencies of this dissertation.Chapter Two:The Evaluation of International Investment Dispute Mechanism. First, it introduces the definition and classification of International Investment Dispute, and all kinds of methods of settlement. First, it introduces the MAI Investment Dispute Mechanism, concerning its birth background and process, main content and basic evaluation on this mechanism. Second, it introduces the ICSID Dispute Mechanism and discusses the birth, tenet, and development of Convention on the Settlement of Investment Disputes between States and Nationals of Other States, emphasizing on the introduction of The International Centre for settlement of Investment Disputes, which gives the basic evaluation on this mechanism based on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Third, it introduces the NAFTA Dispute Settlement Mechanism, discusses the establishment, main content, lists the basic procedures and gives the basic evaluation on this mechanism.In the end, it introduces the WTO Dispute Settlement Mechanism and discusses the evolution, source of law, main procedures, and rules of this mechanism. It also introduces political and legal methods to settle the disputes and then gives the evaluation on WTO Dispute Settlement Mechanism. With the introduction, comparison, analysis, and evaluation of the above four mechanisms, this dissertation points out the advantages, disadvantages and quotable points of each mechanism..Chapter Three:The Improvement of International Investment Dispute Mechanism. First, starting form WTO Dispute Settlement Mechanism, this chapter analyzes the influence of this mechanism on International Investment Dispute Mechanism. Then it analyzes the merits and faults of WTO Dispute Settlement Mechanism, discarding the dross, selecting the essence and advocating setting up two main procedures in International Investment Dispute Mechanism. Moreover, it discusses the necessity and reasons of establishment of ICSID Arbitration Appeal Mechanism. In the end, it accounts for the main content covered by ICSID Arbitration Appeal Mechanism, including practical foundation, concrete content and influence of this mechanism.Chapter Four:The Transparency of International Investment Arbitration. First, it discusses the main attempts to increase the transparency and puts forward the measures to settle the issues. Next, it discusses the investment arbitration procedures and its legal values and also amicus curiae of international investment arbitration given specific discussion. In the end, it discusses the balance between privacy and transparency of international investment and introduces the attitudes towards the enhancement of international investment transparency from the perspectives of both developed and undeveloped countries.Chapter Five:The Forced Arbitration between Foreign Investors and Host Country. First, it introduces the definition, generalizes the traits of forced arbitration, and analyzes the background of the birth of forced arbitration from the perspectives of the influence of international political situation and economic globalization. Next, through the forced arbitration and foreign affairs protection, local remedies of host country and comparison between foreign court litigation and international commercial arbitration, it analyzes the reasons of shift in attitudes towards forces arbitration.Chapter Six:Practice and Strategies of China on International Investment Dispute. First, it summarizes the China’s practice on ICSID General Arbitration Jurisdiction. Next, it analyzes the influence of appeal system on China. Then, it discusses the standpoints and policies to improve the transparency of international investment arbitration in China. In the end, it puts forward the suggestions to improve the legislation of Investment Law in China.The innovations of this dissertation:First, focusing on the hot-heated topic of Arbitration Appeal System, it advocates actively utilizing the Arbitration Appeal System and puts forward several political policies with a view of China’s double-identities, capital out-put power and capital in-put power, in the field of international investment currently and in the future.Second, on the reinforcement of arbitration, this dissertation takes a neutral standpoint, opposing over-privacy and over-transparency, advocating opening moderate privacy, which could be able to protect the procedural rights of arbitration disputing party and rights to know and participate of amicus curiae. In this case, the balance between privacy and openness will be achieved, which provides the new viewpoints and strategies for China to deal with the issues of transparency.Third, this dissertation doesn’t approve that China adopt the mode of "Unconditional Acceptance" and advocates flexible measures targeting at different countries so as to avoid the extreme actions.The deficiencies of this dissertation: First, even though this dissertation combines the methods of theoretical research and empirical research, theoretical research accounts for much than empirical research, which is ascribed to the shortage of author in the field practice of international disputes settlement. With materials concerning the main countries collected and limited knowledge of the viewpoints and measures of other countries, it is difficult for the author to outspread the empirical research.Second, among all the suggested policies, concrete contents are not mentioned, for example, the establishment of ICSID Arbitration Appeal Mechanism. Even this dissertation lists the reasons and purposes of legislation, appeal procedures, appeal reasons, members of appeal board, time limitation of appeal, appeal object, appeal result, appeal charge, appeal assurance and so on in detail, it is merely framework other than the specific, exact legal provision.