Research On The Latest Development Of The Investment Dispute Settlement Mechanism In American FTAs

With further liberalization of international investment, the investment dispute settlement mechanism becomes increasingly attractive, however, the investor-state dispute settlement mechanism at present has been criticized for a long time as well as wide use in that, it is hard to get a balance between protection for foreign investors and maintenance of the host state's sovereignty. The investors'rights have been unprecedentedly protected under NAFTA so that a lot of countries take this mechanism as a model. We could easily find out that many investment dispute settlement mechanisms put protection for investors as a priority. However, the US and some countries have started to re-examine this investor-state dispute settlement and also tried to make revisions to the mechanism. Meanwhile, the US and Australia are trying to return to the state-state dispute resolution. A new revolutionary stage for the international investment dispute settlement mechanism is coming again, and which direction we should go in? This article starts from discussing about new practice of investment dispute settlement, then doing a comparative analysis of new problems and latest developments, finally I would put forward some ideas for establishing investment dispute settlement mechanism in transnational investment between our country and other nations in the world. The full text is divided into three chapters, with the introduction and the conclusion.The first chapter"new practice of international investment dispute settlement in NAFTA"This chapter consists of three parts, first part restates the fundamental elements of the investor-state dispute settlement system under NAFTA, each elements are closely related framing the investor-state dispute settlement mechanism, and also become the basis of the revolution of this mechanism in the new age; the second part raises the problems of dispute resolution in practice under NAFTA and the alterations made to it in expectation of a balance between the protection for foreign investors and the maintenance of a state's regulative sovereignty; the final part starts from discussing the revolutionary stage that initiated by Bipartisan Trade Promotion Authority Act of 2002 and lists out some new practice of the newly revised and concluded BITs by the US.The second chapter"a turning in the revolution of investment dispute settlement under FTA"This chapter compares and analyzes the choices that a state would make when negotiates BITs with developing and developed countries, also raises the question of which direction the revolution of the international investment dispute settlement should go in. The current mechanism has severely challenged a state's regulative, legislative and judicial sovereignty. The inconsistency of awards and their ignorance of social values are intensively criticized by the public. Thus the first part of this section discusses the latest developments of investor-State dispute settlement in US-Chile FTA, including thoughts about the transparency of investment arbitrations, considerations on the establishment of review on preliminary problems or pretrial review and whether the interpretations of the Commission has precedential effect; the second part does a comparative analysis of the investment dispute settlement under AUSFTA and lists out the reasons why the investor-state mechanism is abandoned; the final part focuses on the question whether the investor-state mechanism should be kept in FTAs or not, and analyzes the practicability of appeal mechanism and searches for an alternative mechanism out of appeal.The third chapter"a proposal on improving investment dispute settlement in China"In considering the current situation of international investment development in China, the first part of this section describes the current status of our country in the international investment of the globe; then discusses about the FTAs containing investment dispute settlement provisions and BITs that we have concluded with other countries; the final part gives a specific proposal about enforcement of China-ASEAN investment agreement and China's further practice on revolution of investor-state mechanism.