Research On The Realization Of The Right To Development In International Investment Agreements

The rise of the South makes requirement of changing the traditional order of world trade and investment, one way is to make adjustment of the traditional legal system to reflect the interests of its national development. Therefore, the international economic law system and its department laws are brewing a revolution from the unified standard system to a system that meets diverse interests of all member states. In light of the history debts and reality of the development gap between developing countries and developed countries, developing countries have committed to building a just and rational international order and rules to realize rapid development in international economic cooperation, narrow the gap with the developed countries, and share the fruits of economic integration. However, in addition to a small group of development countries, such as BRICS who have gained remarkable development, the development of majority of the developing countries are still slow, the right to survival and development of them are still face enormous difficulties, which is vulnerable in the protection of international human rights.International investment is the engine of economic development of the world, which plays an important role in capacity building for developing countries. However, current international investment legal system does not reflect their development right, and a system which is liable to realize the development right has not been established within IIAs. As a collective right which is claimed from international community, the right to development has become one fundamental principles of international law. The contents of this principle includes:the developing countries have right to undertake obligations within their ability, accordingly, the developed countries shall take more obligations, and implementing non-reciprocity treatment in international trade and investment legal system, realizing the right to development by allocating right and obligations. Therefore, this paper is begin with the principle of right to development, trying to incorporate the right to development into international investment legal system, the supreme goal of which is liberalization of investment and protection of private property. Then make the abstract principles into concrete legal arrangement and rules so that the international economic go towards harmonious and integral.Besides the preface and conclusion, this paper consists of six chapters:Chapter I explores the value of the principle of the right to development in IIAs, i.e.the significance of the principle of the right to development be integrated into international investment system. It is illustrated by the role and necessity of principle of the right to development in promoting the world economy. This chapter begins by the origin and content of the principle of the right to development as well as the value of which promotes the co-progressive of the world. Then the chapter discusses the spillover effect of FDI in accelerating the economic growth and modernization process of the host country, so it is concludes that the international investment legal regime should incorporate the right to development into it, realizing the multifunction and goals of IIAs, which is not only promoting the world capital flow, but also accelerating the development of less developed countries.Chapter II discuss the application of principle of the right to development in IIAs, it further addresses three critical issues to specify the principle of right to development under the guidance the non-reciprocal treatment for developing countries in chapter I aims to realize the right to development. The three issues including:The conflict between the stability of the commitment reached by the parties of IIAs and the variability of the regulatory measures of the host country, the consideration of domestic law of host states in explaining fair and equal treatment by investment arbitration, i.e. comprehensive survey of domestic law and international law in appraising the legitimacy of state actions; and the legal mechanism to preserve the development policy space for less developed countries. The three issues run throughout the perfection of specific treaty rules. At last, this chapter also gives a brief overview of several aspects in realizing right of development in IIAs.From Chapter ? to Chapter ?, respectively, the paper is focused on the following four topics:the access mechanism to safeguard the right to development, the exception system, the identifications of expropriation and compensation, and the domestic law considerations in fair and equitable treatment by investment tribunals, all the four topics are developed from the perspective of specific rights and obligations of rules in IIAs in which runs throughout the three key issues raised in chapter II.Chapter III probes into the right to development rights of international investment access regime. Considering the weak ability of developing countries to assume obligations, every party of IIAs has right to commit different obligations and transition period in access stage. For the regulation of access, there are two important issues to discuss, the first one is the different treatment in investment access by way of list of inventory (positive listings and negative listings) based on the level and the actual needs of developing countries, a country has discretion to control investment from the perspective of sectors, business field and voting power in investment, so that the developing countries got different obligations. The second issue on access is the regulatory of performance requirements. As for one regulatory measure, countries of different level of development will have different attitude, this paper will use trichotomy to sort out the dozens of performance requirements, and proposed development exception in designing this clause so that the use of some of the prohibited regulatory measures could be justified for less developed countries.Chapter IV discusses the right to development in fair and equitable treatment during international investment arbitration. Considering the real development level of developing countries, the interpretation and application of fair and equitable treatment by the arbitral tribunal should take the domestic law into consideration, and make a comprehensive survey of domestic and international law in judging the legality and rationality of an act of government. In fact, fair and equitable treatment sets up a standard that measure the level of regulation of one state, the uncertainty of this standard gave the chance of improving the regulatory standard to a fairly high level that almost no state could reach. This paper does not propose to exemplified the content of fair and equitable treatment in the treaty, but use it as a standard of reviewing the property of state action, e.i. judging the legality and rationality of an act of government by the tribunal. It is necessary to make distinction of legitimacy and rationality of state acts, measure it by domestic law and international minimum standard respectively. In addition, the identification of reasonable and legitimate expectations of investors should take the development level of one state into consideration. Above all, preventing the arbitrary expanding the discretion of the tribunal by setting proper level of international minimum standard.Chapter V discusses the right to development into the exceptions system in IIAs, this issue is discussed from the perspective of coordinating the conflict between the stability of treaty commitment and variability of regulatory measures of host state. It is worthy of paying attention to the conflicts and coordination of essential interests both in developed and developing countries, especially for developing countries, they are not able to coup with conflicts and difficulties, so they needs aids and ability establishing from developed countries, exception clause provide the helpful legal mechanism to make coordination of sorts of conflicts. This paper studies different kinds of essential interests of international investment according to the subjects of interests into national interest, public interest and private interest, this paper proposed that IIAs should establishing exception system which constitutes of national security exception, general exception, development exception as well as other specific exceptions. The exception system will play a great important role in coordinate the justifiable conflicts in IIAs.Chapter VI explores the right to development in international expropriation regime, which is developed from the perspective of reserving development policy space for less developed countries. With the expansion of government intervention in social affairs, the possibility of attribute the legitimate regulatory action to indirect expropriation has greatly increased, however, the present expropriation clause are ambiguous to the scope and sorts of expropriation. In practice, the frequency of social revolution and change in developing countries is much higher than developed countries. At present, it commonly excludes the regulatory measures related to safety, health and the environment from indirect expropriation. As for the developing countries, the exclusion of the three kinds measures actually not enough for their regulatory needs. After a comprehensive and deep analysis of the regulatory actions of the government, it is found that necessary to exclude the government actions related to the development strategy of the state from indirect expropriation, which will give wide policy space to realize the right to survive and development.