The Significancy Of The Public Interest Principle To International Investment Arbitration

The international investment arbitration system is adored by large multinational investor since it product to living, develop very quickly. As a kind of special international company matter arbitration, the international investment arbitration since have the arbitral general total, and then have the characteristics of itself, therefore, in the international investment arbitration system, must break the originally possessed international commercial arbitration theories, establish the special system to carry out the value that it should pursue. From global and international investment treaty to local area international investment treaty, including the bilateral investment treaty, from the investment treaty that a country signs outward to inside the concerning arbitral legislation of the promulgation, from each international arbitration court modify the arbitrate rule to the spirit in the investment arbitration case, It all can be seen that the international society pay attention to protect the public interest increasingly in international investment arbitration nowadays. Along with the further development of the international trade invest, we should carry on the international investment arbitrate theoretic search and legislation, to expect better protecting the public interest, and support healthy movement of the international economic order.This paper is found by three chapters:The Chapter One mainly analyzes the reason that the we pay attention to protect the public interest in the international investment arbitration system.This chapter carries out the path to carry on the detailed analysis to the public interest, and point out that the current international investment arbitration system can't give the public interest the enough protection, and generalize the widespread standpoint of the international society currently. First, although the public interest is too abstract to make a definition, but because it is public benefit, and it can actively promote the whole development of society, we should still give them protection. The public interest will meet the interference of various factor to carry out process, including the government power, should affirm the standard according to the public interest, establish the concrete system to eject various interference factor.Secondly, the complexity of the international investment cause the public interest are easiest drived sacrifice, but the freedom of the international investment liberalism aggravated this circumstance. The capital importation country is internality by the our country attraction foreign capital to drive and the capital importation country infliction of outside pressure, usually will sacrifice the public interest. The international investor to maximize their benefits, also will ignore their maintenant social responsibility of the public interest.Finally, the emergence of international investment arbitration has it's rationality, but the default of the arbitration system makes international investment arbitration to neglect the maintenance of the public interest in practice process, but unilateral emphasize the protection to the investor. The international society has already known the above-mentioned circumstance, and begin to strengthen the improvement of international investment arbitration system, in order to protect the public interest possibly.The Chapter Two carries on the study of the confidentiality system of international investment arbitration. The international investment arbitration should have the confidentiality system, but this system must be obey in the public interest principle.First, the article analyzed the general international commercial arbitration rules and laws. International commercial arbitration usually pay attention to the confidentiality, thinking that this is a big advantage of arbitration system. Countries have different understanding to it,it will appear the clearly contrary judicial precedent in practice. Totally, the current international attention of confidentiality once public interest conflict the attitude adopt, even toward to support the latter.Secondly, the article discusses that doing of the confidentiality of international investment arbitration rules and practices. We can see that the international investment arbitration case at meet both take place the conflict of attitude and international trend agree with, basically approve the public interest principle to underlie the arbitration confidentiality. At the same time, multilateral and local area of international investment arbitration rules also are modified, in order to strengthen the clarity in the arbitration process, and reduce confidentiality to the disadvantageous influence that public interest bring.Finally,this article redefinits the position of the international investment arbitration confidentiality. It thinks that the international investment arbitration should take public interest as the principle. When the confidentiality and that principles conflicts, we should choose with the public interest principle as the leader, and satisfy public for transparent, avoid the damage toward the public interest which the international investment case arbitrate process because of lacking the direct. The article further arbitrates to the international investment arbitration system the corpus of the confidentiality, keep secret the function of the items, procedure and condition, court and breached the responsibility of keep secret the duty to carry on the study, and make an elucidation for this chapter and next relations.The Chapter three discussed the law position of the third part in international investment arbitration. Allowing the third part to participate the arbitration process be advantageous to solve the international investment disputes fairly and reasonably, and be advantageous to protect the public interst.The third part participating arbitration can draw lessons from "the friend of law court" system. The system came from the Ancient Rome Law, developed at common law in England and thrived on an American law. The article introduced the attitude of the international entity of the WTO, NAFTA, ICSID etc. to the friend of law court , including related rule and fulfillment. Although experienced the development process of turns and twists, saw currently, international society welcome the third part to participate international investment case. Both WTO and NAFTA have already had related actual case, the ICSID Secretariat is also put forward aggressive suggestion to carry on the modification to ICSID regulations, among which provision concerns the third part participating arbitration.Make reference to the experience of the United States and WTO etc. concerning the friend system of law court, the article conceive about the third part participate system to international investment arbitration ,including its character, participating principles, participating corpus, participating way, form and substantial request, effect and so on. Need to be explicit is currently the third part participating the international investment arbitration through handing over a friend report isn't a kind of right, but admittance, and arbitration tribunals have the power to decide whether adopt the friend of law court report freely. Moreover, it's should to have necessary restriction to the third part participation system and prevent it from abuse. The third part can provide related cases with this of similar judicial precedent, expressing their suggestions on the law applied, also can disclose toward arbitration tribunals their information and knowledge related to the case fact, even can talk about the processing of the case as a result how influence case outsider. But the institutional operation should obey the supervision of "judicatory economy".The meaning of the public interest principle arbitration to the international investment arbitration system be unlimited at the above-mentioned both side and moreover still including international investment arbitration jurisdiction, international investment arbitration awards'reviewing mechanism and so on.After the above-mentioned analysis and study to the international investment arbitration concrete system, the writer think, for the need to protect the public interest, the international investment arbitration still have many systems to be improved. Under the existing circumstance , international investment arbitration rule's carrying on an improvement is more viable. Therefore we should pay attention to research the international investment arbitration regulations, in order to keep international investment order on a health and positive development, and protect public interest of international society better.