Studies On The Issues Of State Responsibility In "Investor-state Dispute Settlement"

The investor-state dispute settlement mechanism(ISDS)is in legitimacy crisis,after discussing the reform of the ISDS mechanism,people reflect on the international investment agreements(IIAs),people reflect on the fundamental issue of the imbalance of state and investor rights and obligations under the old paradigm of the international investment agreements.The international investment legal system needs the sustainable development change,draws lessons from the comprehensive and balanced rules of the law of state responsibility,carries on the relevant changes to the IIAs paradigm,China' s IIAs also needs to keep up with the wave of reformIn addition to Introduction and Conclusion,this thesis consists of six chapters.Chapter One outlines the application of the law of state responsibility in ISDS.The law of state responsibility is mainly customary international law,the main text origins are the "draft articles on the responsibility of States" and the“draft articles on diplomatic protection".The ISDS tribunal is actually in charge of the state responsibility of the host country,must face the difference between ISDS arbitration and traditional inter country dispute settlement and commercial dispute settlement,apply the general rules of international law,handle the relationship between the law of state responsibility and IIAs special law,in order to solve the legitimacy crisis of ISDS mechanismChapter Two discusses the constitutive elements of state responsibility in ISDS.The elements of state responsibility consist of two elements:attribution and behavior.ISDS tribunal needs to decide whether the defendant' s act is a state act and whether the act violates the IIAs obligations.Arbitration practice reflects the defects of the relevant IIAs rules.Chapter Three focuses on the issue of the exemption of state responsibility in ISDS.Starting with the Argentina series of cases,analyzing the exemption of the law of state responsibility and applies it to the ISDS arbitration,as well as the relationship between the law of state responsibility and the IIAs exception clauses.In the risk society,in order to guarantee the necessary policy space of the country,it is necessary to add exceptional clauses in the IIAs,to enrich the types of exception clauses,expand its scope of application,clarify the applicable conditions and applicable consequences.Chapter Four discusses the relief of state responsibility in ISDS.In the ISDS arbitration,investors basically advocate compensation for money.Most IIAs only make provision on the question of compensation for the lawfully expropriation,and make no mention of other issues of compensation for breach of IIAs obligations.Comparing the ISDS arbitration practice,it is found that the "full compensation"standard and the limited amount of compensation in the law of state responsibility are more in line with the requirements of the sustainable development of international investment law.Chapter Five focuses on the issue of invoking state responsibility in ISDS.ISDS cases have surged,and it is necessary to limit the scope and procedures for investors to submit disputes to the ISDS.For this limitation,it is useful to re-introduce and develop the nationality and local remedies rules of the law of state responsibility law in the IIAs.Chapter Six returns to the basic problem of the reform of international investment legal system-changing the IIAs paradigm.The purpose of IIAs should not be limited to a single investor protection,but must balance the interests of the host country,the investment stakeholders and investors,revising the new generation of sustainable IIAs provisions,increasing the obligations of investors,limiting the scope of state responsibility,and ensuring the necessary policy space of the country.