The Improvement Of International Investment Arbitration Mechanism From The Perspective Of Human Rights Law

From the new perspective of human rights law,this paper comprehensively and systematically explains the concept,principle,path and method of improving the international investment arbitration mechanism.International investment arbitration is not a traditional human rights relief mechanism.However,due to the increasingly close relationship between international investment and human rights protection,foreign investment may affect the right to health,the cultural rights,the right to environment,the rights of indigenous people,the right to water and other human rights of local residents in the host country.It is hoped that the international investment arbitration,traditionally designed to be a means of settlement of international investment disputes,may also deal with investment-related human rights complaints.However,the current practice of international arbitration shows that human rights law has always been on the edge of the arbitral tribunal,and almost all of the reasons related to human rights were not supported by the arbitral tribunal.When the arbitration tribunal directly applies the human rights clauses,it generally considers that the human rights law is irrelevant to the jurisdictional clauses of investment treaties,lack of sufficient basis of the right to participation of third party,and human rights law being limited to the scope of domestic law in counterclaims.In determining the "reasons for exemption",the arbitration tribunal either denies the occurrence of "emergency",or considers that the regulatory measures based on human rights are not "necessary",or even ignores the "public purpose" having human rights implication in the "non exclusive measures clause".The neglect of human rights law in international investment arbitration is attributed to the arbitrator's interpretation of laws.International investment arbitration has the characteristics of both civil law system and common law system,which makes the interpretation of arbitration tribunal chaotic.The open texture of investment treaty deepens the chaotic and makes it have double obstacles of interpretation,i.e.,the relevance of human rights law is ignored due to the limitation of basic investment treaty provisions under formal rationality and the application of human rights law is avoided due to the arbitrariness of the purpose interpretation under substantive rationality.Therefore,the tribunal should restrict the"recognition rules" in the way of argumentation.The equilibrium theory of the existing international investment legal system is committed to embedding the free economic market into the human rights law,and filling the vacancies of treaties with the general legal principles related to human rights law.However,these theories still can not prevent the expansion of judicial discretion.The fragmentation of international investment law and the growth structure formed in practice determine that it is a complex system of autopoietic and self-organization.The institutional separation of international investment law and human rights law makes human rights law outside the system.However,on the basis of the structural coupling of the two,the path of demonstration of human rights law shall only follow the rules of informational redundancy from different observation perspectives,entering the system from "environment",and finally transforming into doctrinal sentences.Thus the position of human rights law in international investment law is affirmed by value demonstration,and the uncertainty connotation of human rights law is regulated by legal principles.There are three kinds of value conflicts in international investment arbitration:the value of justice and judicial efficiency;the value of investment freedom and subject equality;the value of economic development and international order.The international human rights law has the unique function of bridging the above cracks and integrating the value conflicts.Specifically,the value integration function of human rights law is embodied in three aspects:connecting value communication with the concept of common human rights,carrying out value coordination with the form of good governance of law,and coordinating value with limitation and derogation of rights.As a result,human rights law can be properly transferred into the international investment arbitration system through the dimension of "meaning",and transformed into the applicable law of investment arbitration in the normative sense.The applicable principles of human rights law in international investment arbitration can be restricted from three aspects:concept,interpretation and procedure.To be specific,firstly,the application of human rights law needs to comply with the principle of universal human rights.The concept of human rights in the treaty interpretation can be limited from three aspects:the obj ect of human rights,the subject of human rights obligations and the standards for the performance of human rights obligations.The second is the principle of investment relevance.Similar to the opening and closing of the "hinge",the introduction of the external human rights law to the arbitration tribunal should also confirm the connectivity and dynamics.It should not only ensure that the form is reasonable,the citation of human rights law conforms to the doctrinal concept,but also ensure the integrity,effectiveness and complementarity of treaty interpretation.Thirdly,international cooperation principle should be followed.This principle should replace the "inherent power" of the arbitration tribunal with"communication power",highlight the negotiation value by the role differentiation of the arbitration procedure,and reshape the arbitration procedure with intersubjectivity to promote "win-win cooperation".From the perspective of practice path,we can improve the system and way of applying human rights law to international investment arbitration mechanism from treaty interpretation and amicus curiae procedure setting.From the internal point of view,according to the human rights meaning of fair and just treatment,the human rights law should be applied to refine the criteria of adjudication,Human rights indicators should be put into reasonable expectations,and human rights should be integrated considerations into the principle of proportionality,according to the human rights meaning of fair and just treatment.From the external point of view,the application logic of interpretation methods should be straightened out The application of human rights law,should be effectively regulated,the coherence of legal significance should be ensured,and the "purpose rationality" of interpretation content should be tested.As far as the procedure of amicus curiae is concerned,it is essential to improve the transparency,expand the scope of participants,refine and unify the acceptance criteria of human rights opinions.The incorporation of international investment arbitration mechanism into human rights law brings enlightenment to China.In this regard,China should take active measures to improve and optimize the relevant institutions.Specifically,following approaches and methods should be taken:first,it should optimizing the design of international investment treaties,incorporating investor's human rights obligations into international investment treaties,and improving ISDS clauses to limit the jurisdiction of the arbitration tribunal over human rights cases;second,as the host country of the lawsuit,China could invoke the treatment clauses for human rights defense or counterclaim,and should also refer to the general legal principles.The third method is to strengthen the legal awareness of investors to fulfill their human rights responsibilities by enhancing the management of foreign investors and overseas investors.