| International investment disputes occur between foreign private investors and host countries,which are caused by private overseas direct investment.It is very important that the international investment dispute can be resolved quickly and peacefully,so that not only to promote the healthy development of international investment,promote the international flow of capital,but also play an important role in international peace and stability.Investment disputes have a variety of ways and means to deal with,in general,including the way of consultation and mediation,through the host country's domestic relief,the way diplomatic protection(this way as a political way is no longer used),and the way of investment arbitration.The international investment arbitration in recent years is more popular dispute settlement to the state and investors.By the end of the twentieth century,with the increase in direct investment between countries and countries,investment disputes were also emerging,and countries began to sign investment treaties or bilateral investment agreements to regulate investment and resolve disputes.Prior to 1995,there were very few investment arbitration cases,but after 1995,the number of investment arbitration cases increased rapidly.Investment arbitration originated in commercial arbitration,so it copied procedures and rules from commercial arbitration as a model,but due to the nature of investment arbitration and commercial arbitration,resulting in a number of institutional deficiencies.As the institutional defects in investment arbitration caused public distrust of this mechanism,led to the legitimacy of investment arbitration crisis.For this reason,the international community take a series of measures to deal with the legitimacy of investment arbitration crisis.One of them is transparency.This thesis takes the transparency of international investment arbitration as the topic,and elaborates the theoretical basis and practical trend of this problem,and summarizes the inspiration of transparency reformation to China.This thesis is divided into five parts.The first chapter is an overview of investment arbitration.International Arbitration Arbitration refers to arbitration under the Washington Convention and other multilateral treaties and bilateral investment agreements to resolve disputes between States and foreign investors.It originated in 1965 ICSID Convention,which is created by the international investment dispute settlement mechanism,has been 50 years.Since the emergence of international investment in the 1960 s,the number of investment arbitration cases has been increasing rapidly.There are more and more countries involved in investment arbitration.In 230 countries,131 countries have already been the home country of investment or investment host countries,participating in investment arbitration.However,at the same time of rapid development,investment arbitration has a serious crisis: that is,the interpretation of similar issues in arbitration is not consistent,which caused damage to national sovereignty and public interest.The main reason is that international investment arbitration originated from international commercial arbitration,especially in the early stage,as a new way of settlement of investment dispute,its "according to gourd painting scoop",learn from the international commercial arbitration system and practice,so many rules and systems between investment arbitration and commercial arbitration are the same or similar.Furthermore,while the system and rules similar to the same time,investment arbitration and commercial arbitration adhere to the concept is also very consistent.International investment arbitration also has a thick "business atmosphere".Usually the impact of commercial arbitration on investment arbitration,that is,investment arbitration on commercial arbitration reference,known as "commercialization of investment arbitration." In investment arbitration,insisting on commercialization and ignoring the nature of the public legal profession of sovereign states may cause serious consequences.First,as a sovereign state,the state has the function of safeguarding the public interest,not only that,in order to achieve the goal of protecting the public interest also derived a series of national privileges.Second,when a sovereign state acts as a party to the investment dispute,its dispute is likely to involve national policy issues,and national policies are often associated with public interests,public health,the environment.If this time ignores the nature of the state,only as a commercial subject,then in the process of arbitration will inevitably ignore the public interest,causing public dissatisfaction with the investment dispute settlement mechanism.Therefore,international investment arbitration must be "delete-commercialized".The international community is also aware of the drawbacks of commercialization of investment arbitration.By the beginning of the 21 st century,ICSID and NAFTA have proposed reforms to investment arbitration,or at least the possibility of reform.These reforms include the creation of a breakout of a ruling,an arbitration appeal mechanism,and a transparency reform.In order to invest in arbitration "to commercialization",but also to deal with the legitimate crisis,which leads to the second chapter,the discussion about transparency of investment arbitration.The second chapter is divided into three parts.The first section clarifies the concept of transparency in investment arbitration,the transparency of the procedures in the international investment dispute settlement mechanism,that is,the transparency of investment arbitration,that is,in the process of investment arbitration,allowing third parties involved in arbitration to have significant interests,including arbitration initiated Publicity,the disclosure of documents in arbitration,the disclosure of the trial process,acceptance of the written advice of the Friends of the Court,so that a significant third party in the arbitration can understand the entire dispute settlement process.The section section studies the value orientation of investment arbitration transparency.The first is the transparency of investment arbitration and the right to know.Increasing the transparency of investment arbitration helps to achieve the passive realization and active realization of public right to know.And once the public right to know is guaranteed,public participation and supervision in turn will benefit the improvement of investment arbitration,and enhance public confidence in this dispute settlement mechanism.Second part is about investment arbitration transparency and public interest.Private interests are an integral part of the public interest,the absence of public interest,and the private interest will be out of the question,so it is necessary for the private interest to be properly transferred to the public interest,meaning that transparency is necessary in investment arbitration.Thirdly,investment arbitration is transparent and efficient.Some scholars believe that enhancing the transparency of investment arbitration,the process of disclosure of information to third parties,will result in some substantive information disclosure and delivery costs,and for those who would have to bear the high cost of the parties themselves,this is undoubtedly Extra pressure.This thesis believe that the above problems exist,but these problems can be avoided in a certain way,can not constitute a reason for the reform of investment arbitration transparency.In 2006 ICSID Arbitration Rules,section 37(2),the arbitral tribunal shall ensure that the written opinion of the Friends of the Tribunal does not cause interference to the arbitral proceedings and does not entail the burden on the parties as an arbitral tribunal's acceptance of the written opinion of the Friends of the Tribunal consists one of the criteria.In the 2003 Declaration of the FTC of NAFTA,it was also mentioned that the written submissions must be concise,including no more than 20 pages of appendices;there should be a brief statement showing the position;to submit a written opinion within the scope of the dispute.There is also a similar provision in Article 4 of the Transparency Rules 2014."After consultation with the parties to the dispute,a third party may submit written material to the arbitral tribunal within the scope of the dispute",and the written material shall be " concise text,Shall not exceed the number of pages allowed by the arbitral tribunal ".The various arbitration bodies have recognized that increasing the transparency of investment arbitration may have an impact on the efficiency of investment arbitration,but the arbitration bodies also propose solutions in the arbitration rules.The arbitral tribunal and the parties to the dispute should work together to The impact of transaction efficiency to a minimum,avoid weaknesses,play a third party to participate in the advantages of arbitration.Finally we comes to the investment arbitration transparency and autonomy,and some scholars believe that third-party participation may affect the arbitration of the strategic arrangements and the parties autonomy.The author believes that investment in arbitration to enhance the transparency of the reform and the autonomy of the parties is not contradictory.Whether the arbitral tribunal has the discretion to allow third parties to participate is judged on the basis of the arbitration rules.And the arbitration rules are freely chosen by the parties in accordance with the principle of autonomy.Therefore,in the final analysis,the arbitral tribunal's right to allow third parties to participate is also derived from the authorization of the parties or the principle of autonomy.Section 3 of this chapter summarizes the measures to enhance the transparency of investment arbitration,namely,the announcement of the commencement of the arbitration proceedings,the submission of written opinions of the Friends of the Court,the disclosure of the trial process,the disclosure of the documents in the arbitration and the disclosure of the arbitration award.This article summarizes and compares the ICSID,NAFTA,the WTO Transparency Rules,and the 2012 US BIT model with form.Reference to the transparency of arbitration,it should not be mentioned with the corresponding concept,that is to say the confidentiality of arbitration.The confidentiality of arbitration is outlined in Section 4 of this chapter.And ultimately settled to balance the transparency and confidentiality of international investment arbitration.There are many reasons for enhancing the transparency of investment arbitration and enhancing the participation of third parties.First,when the dispute involves the relevant national rules and measures related to the environment and public health,the solution to these disputes will have a public interest impact;Secondly,in the investment arbitration case,the arbitration sponsor often put forward huge economic claims,So that the interests of the host country will also be affected;In addition,the public's right to know and human rights theory,but also to enhance the participation of third-party theoretical support.However,it is undeniable that there is a certain price to enhance the transparency of investment arbitration: for example,if the deal is not good,it is possible to increase the unnecessary costs in investment arbitration,resulting in delays in procedural time.Therefore,when the transparency of the reform,to grasp a degree,once too much force,too transparent,it is likely to infringe upon the interests of the parties to the arbitration,making the international community to discourage this dispute;but floating in the surface.The lack of transparency may lead to the inability to meet the needs of the non-disputing parties in the international community.Therefore,This thesis believes that we can learn from the principle of proportionality in domestic law and international law to solve this problem,with the principle of proportionality to balance the transparency and confidentiality of international law.The third chapter introduces the international practice of enhancing the transparency of investment arbitration,focusing on the practice of NAFTA and ICSID.The international dispute on investment arbitration begins with NAFTA because in the eleventh chapter of the North American Free Trade Agreement did not make a rule about the following elements: the announcement of the commencement of the arbitration proceedings,the Friends of the Court,the disclosure of the trial process,the disclosure of the documents in the arbitration,the disclosure of the arbitral award.Beginning in the 1990 s,some non-governmental organizations began to demand participation in NAFTA as the legal basis for investment arbitration procedures to enhance the transparency of investment arbitration.These investment arbitration cases are usually related to public interest,and environmental protection,protection of public health.Whether it was agreed that these non-governmental organizations were involved in investment arbitration,became the focus of the arbitral tribunal to solve the problem,but also in the international community caused widespread controversy.In the case of Messenius v.US gasoline additive case and United Parcel Service v.Canada,the arbitral tribunal is rejected in accordance with Article 15 of the UNCITRAL Arbitration Rules,for its participation in the trial,access to material and so on.In 2003,the Free Trade Commission issued a statement stating that the arbitral tribunal had the right to accept the written opinion of the Friends of the Court and to establish a standard of acceptance of the written opinion.Since then,the opinion of the Friends of the Court has been based on the NAFTA framework.For the practice of ICSID,a total of four case studies were conducted.The first three cases occurred prior to 2006,and there was a discrepancy between the arbitral tribunal's decision for third party participation.In 2006,in order to enhance the transparency of investment arbitration,ICSID The rules are modified and the changes are mainly concentrated in articles 32 and 37.ICSID arbitration rules after the amendment,the practice of the three parties to participate in the acceptance has greatly improved,the relevant disputes are greatly reduced.The fourth chapter of this paper is to compare the transparency of investment arbitration with the transparency in WTO dispute settlement mechanism.The reason for this comparison is that the controversy about transparency in the two dispute settlement cases occurred in the 1990 s,and the cases appeared in 2000 Before and after,and investment arbitration to resolve investment disputes,WTO dispute settlement mechanism to resolve trade disputes,are related to the country's public policy,national sovereignty,etc.,the two parts were inextricably linked.First comes to the WTO dispute settlement at all stages of the transparency of the analysis,and then,respectively,this part is about the comparison between ICSID and NAFTA in the transparency of the rules,and ultimately settled to learn from each other.The transparency of the WTO dispute settlement mechanism can draw on the following points: First,the WTO dispute settlement mechanism must formulate a clear standard of acceptance of the written opinion of the Friends of the court.The Friends of the Court in the WTO to participate in the issue of reference to investment arbitration on the Friends of the relevant provisions of the experience,especially in the investment arbitration on the acceptance of the Friends of the Court of written comments.In the amended ICSID Arbitration Rules in 2006,the acceptance criteria were further clarified when the arbitral tribunal had the right to accept the written opinion of the Friends of the Court: when a third party could bring a different perspective from the parties,Assisting the arbitral tribunal to determine certain factual and legal issues;when a third party may raise new questions within the scope of the dispute;when a third party has significant interest in the arbitration.In article 37(2),the arbitral tribunal shall ensure that the written opinion of the Friends of the Tribunal does not interfere with the arbitral proceedings and does not entail a burden on the parties as a criterion for whether the arbitral tribunal accepts the written opinion of the Friends of the Tribunal;In 2003,NAFTA's FTC issued a statement also mentioned that the written comments must be concise,including the appendix should not exceed 20 pages;there should be a brief statement that position;to submit a written opinion within the scope of the dispute.In the WTO dispute settlement rules,there is no provision for a similar standard to accept the court's written opinion.In the practice of WTO dispute settlement,there is no expert group and appellate body to clarify the above criteria.However,it is clear that the standards of written opinions of the Friends of the Court can reduce a lot of controversy,so that the practice can be followed to improve the consistency and predictability of dispute settlement,and ultimately promote the development of WTO dispute settlement;secondly,WTO expert group review process The degree of publicity.According to the DSU,unless the parties to the dispute take the initiative to apply,otherwise the trial process is not open to the public;and in the 2006 edition of the ICSID arbitration rules,the arbitration tribunal in consultation with the Secretariat,allowing third parties,such as experts to participate in the trial,the arbitration process to Three parties are open unless the parties concerned objects.After the comparison,we can see the obvious difference between the above two provisions.The right of the DSU to allow the public review process is in the dispute and the expert group has no right to decide,and according to the ICSID arbitration rules,the arbitral tribunal has the right to decide whether the third party participates The parties may object.ICSID in the trial process of transparency is significantly higher than the WTO dispute settlement mechanism,it is worth WTO dispute settlement mechanism for reference.At the same time,the transparency of the WTO dispute settlement mechanism is also worthy of investment arbitration reference,the specific analysis is as follows: First,the transparency of the arbitration award,investment arbitration can learn from the WTO.After the adoption of the DSU report by the Secretariat,it is published by the Secretariat in the official website of the WTO for public inspection.The arbitral tribunal has no right to publish it without the consent of the parties to the dispute.Obviously,ICSID investment arbitration is less open to dispute settlement than the WTO dispute settlement mechanism.In order to further enhance the transparency,this thesis believes that it can learn from the WTO dispute settlement mechanism to resolve the results of the open mode and the relevant time limit.Second,in the process of document disclosure,investment arbitration can learn from the WTO in the distribution and release of restrictions on the procedures.It was mentioned in the decision that the WTO documents should be distributed in an unqualified scope,in addition to the documents listed in the appendix that are distributed within a limited scope.In the case of a document distributed within a limited scope,the restriction shall be taken after the adoption of a report or decision in relation to its subject matter or the contact limit shall be taken 6 months after the date of its distribution,whichever is the earlier.This provision strengthens the transparency of the relevant documents in the WTO dispute settlement mechanism,and can also be distributed to the secret documents,but only the distribution of time limits,it is worth to invest in arbitration.This thesis also believes that,according to the current stage of practice,the WTO expert group and the arbitral tribunal of investment arbitration,after accepting the written opinion of the Friends of the court,what is the content of the written opinion,what consideration has been made to the written opinion,how to act as a written opinion Are lack of explanation.In order to achieve maximum transparency,the Panel and the arbitral tribunal should make corresponding efforts,such as the main points of dispute in the written comments of the Friends of the Court in the report of the Panel and the arbitral award,the reasons for the acceptance or objection of the main dispute,the use of the views of the Friends of the Court,the new facts and the law Issues,etc.,to allow non-governmental organizations or interest groups submitting written comments to determine how their participation can bring the impact of the settlement of the dispute.This will also make the participation of the Friends of the court more predictable and consistent.In addition,for the WTO dispute settlement or investment arbitration in the open trial process,you can introduce the way the network broadcast,so that the interests of the world,concerned about the case of the public to keep abreast of the trial situation.This technology is now very common and can improve transparency effectively.The fifth chapter is about the development trend of investment arbitration transparency and its enlightenment to our country.The development trend of investment arbitration transparency focuses on some of the innovative provisions of the United Nations Conference on Trade and Development(UNCTAD)on transparency rules and transparency conventions,which indicate that transparency is a general trend.In 2010,UNCTAD issued a review of the "transparency of treaty-based arbitration between investors and countries,which shows that China has disagreed with the transparency of investment arbitration.However,due to changes in the situation at home and abroad,China's attitude must also be changed,these changes include: First,China will be launched after 2013,along with all the way strategy,will be more investment as the host country and investor home country;Years later,China began to appear as an applicant in ICSID investment arbitration,can no longer avoid the attitude of transparency;third,China and the United States,the EU bilateral investment agreement negotiations,and the United States and the European Union are The advocates of investment arbitration reform,only the issue of transparency more attention,it will not be at a disadvantage in the negotiations;Fourth,in October 2016,the Shenzhen International Court of Arbitration held a conference to incorporate investment arbitration into the scope of the case.From this perspective,China must also pay more attention to the transparency of investment arbitration.China must change its minds and actively engage in transparency reform,put into the formulation of rules,and better safeguard the rights and interests of the state,while China's lack of experience,the negotiations on the forefront of the problem,but also to maintain a cautious attitude.At the same time,it is also said that the traditional commercial arbitration,involving the public interest cases,private interests should be properly transferred to the public interest.Therefore,a limited degree of confidentiality can be a breakthrough.The confidentiality of information in commercial arbitration after the technical treatment can be released to the public. |
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