Research On The Legal Issues Of International Investment Arbitration In Latin America

As the headstream of Calvo Doctrine,the Latin American region(Latin America)has a significant historical impact on the development of international investment arbitration.Latin America has become the second largest destination for Chinese overseas investment after Asia.Studying the development of the foreign investment arbitration system in this region has a theoretical value for Chinese researchers to rich research samples.In recent years,countries in this region have also frequently become defendants in ICSID.It reinforces the importance of studying the area.Therefore,it is beneficial to studies the legal issues encountered in the development of international investment arbitration in Latin America and it will provide a reference for China to formulate relevant policies to resolve disputes of foreign investment.Due to the long distance in space and the lack of investment experience in this region,the current domestic research output on Latin American investment and arbitration issues have very fewer research papers than other regions.This paper selects Latin America as the object of space research,and based on the international documents which closely related to international investment arbitration such as the bilateral investment agreements(BIT)and the Convention on the Settlement of Investment Disputes between States and Other Countries(Washington Convention),combined with Latin American countries' experiences of participate the International Center for Dispute(ICSID)to solve investment disputes and investigate the development of international investment arbitration represented by ICSID in the region after a vertical and horizontal research and analysis.From a historical and current view,like other regions of the world,the international investment arbitration system has become the leading choice for resolving investment disputes.In the international investment arbitration system,the international arbitration institution which is marked by ICSID and the arbitration rules system which is represented by the Washington Convention is the core component of the current international arbitration in the world.The investment arbitration system constitutes the main option for Latin America to participate in the practice of international investment arbitration.To study the practice and attitude of Latin American countries in international investment arbitration,it is necessary to theoretically investigate the BIT content which is the most closely related to international investment arbitration.The BIT signed by the state is like a key to unlocking the gate of ICSID,which is an important legal basis for submitting the disputes between investors and the host country regarding investment.Therefore,this paper selects the BIT content and participates in the ICSID practical experience in this region as the main research object.By analyzing the evolution process,characteristics and problems of BIT content signed by Latin American countries,and the attitude change and difficulty of executingon ICSID arbitration in some nations of this region like Argentina and Ecuador,to find the valuable information for China to participate in international investment arbitration in the future.Based on this logic,the paper divided into five parts.The first part is the introduction.In this chapter,firstly introducing the research background of this paper,and make a reviewed about the research status in this issue.Latin America and China have frequent economic and trade interactions,and this region has become an important investment destination for Chinese investors.As China's aggregate investment in Latin America growing,the potential for investment disputes also increasing,but the research achievement on the state investment arbitration system and the main countries' attitudes toward ICSID in Latin America are insufficient.This part also explains the ideas and methods of the research and defines the connotation such as the Latin America areas and the choice of research objects.The second part of this paper is the first chapter.Through the perspective of historical development,this chapter sorts out the development and changes of the international investment arbitration system in Latin America.The time for Latin American countries to participate in international investment arbitration is divided into independence,rise,integration,and different four stages.Then I analyze the status quo of Latin American international investment arbitration,including not only the status of regional participation in international investment arbitration but also the status quo of the institution and system construction in the major countries in Latin America,which is set in domestic law to matches the international investment arbitration system.This region was eventually defined as the practitioner and challenger of the current international investment arbitration system.The third part of this paper is the second chapter.BIT is the basic legal document for international investment.In this chapter,I sort out the contents of BITs which are signed by Latin American countries,especially comparative study the clauses which related to the international investment arbitration clauses to find the commonalities and differences between different BITs.The similarity in the main BIT contains some procedural rules and substantive rules,but the difference is reflected in the interpretation and implementation of the relevant provisions.Based on Latin American countries' experience of participating in ICSID arbitration to find out the legal risks in the content.In this chapter,I focus on those contents in BIT rules for submitting investment disputes to international investment arbitration.And in this paper,I analyze the reasons why Latin American countries set exceptions to investment disputes when they submit them to international investment arbitration in consideration of those factors such as sustainable development,major security,cultural protection,and public order and good customs.The fourth part of this paper is the third chapter.ICSID is the most important institution to settle the disputes between Latin American countries and investor in Latin American.In this chapter,I analyze the problems encountered by Latin American countries in participating in ICSID and the countermeasures after ICSID made an award.International investment arbitration has experienced an evolution from commercial arbitration to investment arbitration in this region.And the modern arbitration system had attracted most countries in this region to join the Washington Convention and through ICSID to resolve disputes related investment,but some other Latin American countries represented by Brazil have also had a different attitude to ICSID,and this phenomenon is worthy of attention and research.The unpleasant experience with ICSID to Argentina,Ecuador and other countries in this region has exposed some problems in the ICSID system itself,such as insufficient transparency,serious fragmentation,and other institutional problems,as well as non-institutional issues such as high participation costs and obvious political,intervene factors from international and domestic.These problems have led to negative sentiment towards ICSID arbitration in the region.Finally,the prospects and direction of ICSID reform in the region are viewed from the perspective of Latin American countries.The fifth part of this paper is the fourth chapter.In this chapter,I mainly analyze the legal problems of international investment arbitration in Latin America and try to form a useful reference for China to participate in international investment arbitration.Under the premise of China's clear position to participate in international investment arbitration,there are two main issues of discussion,one of the issues is focused on China's signing of BIT content verification and another is participating in ICSID investment arbitration for preparation.Both Latin American countries and China,as developing countries,have common development needs in participating in international investment arbitration.Therefore,in this chapter,I try to propose the idea of constructing investment arbitration institutions and institutions between China and Latin America.Moreover,I analyze the potential prerequisites for achieving this goal and forecast potential problems.The sixth part is the conclusion in this paper.The conclusion section reviews the key research issues of this thesis and proposes three suggestions.First,review the problems presented by the Latin American countries in signing BIT content,it is necessary for China to re-examine the BIT content that has been signed.Second,ICSID,as the most important investment dispute resolution institution in Latin America and even in the world,still has the reasonable value and significance of its existence.In the short term,regardless of Latin America's attitude toward to ICSID,it will not be able to eliminate the influence of ICSID in this region.Third,there are theoretical possibilities for constructing an investment arbitration mechanism between China and Latin America,but it still a difficult task.As China's investment in Latin America gradually warms up,the possibility of disputes arising from investment by Chinese investors in Latin America is increasing.Building a more direct dispute resolution platform is conducive to protecting the interests of investors and improving the efficiency of foreign capital by host countries.