Research On The Principle Of Sustainable Development In International Investment Law

The concept of sustainable development is a completely global and new concept nowadays, the word of sustainable development is strongly agreed by all countries including developing countries and developed countries since it was presented. Economy and social life will be greatly changed by implementing the strategy of sustainable development, and the change and development of social existence must inflect the change and development of social ideology as social existence decides social ideology, and the law as the superstructure must be also inflected by it. International economic law and international investment law which is one of the most important branches of international economic law must make sense of sustainable development, too.Although sustainable development has not been accepted by international society universally as a basic principle of international economic law, it is sure that the acceptance just need sometime, sustainable development is becoming one of the basic principles of international economic law. The shape of the theory of sustainable development has its social, economic and legal foundation. To seek development of economy, man has asked more from nature and a series of problems come along with it, such as the pollution of environment, the shortage of resources, etc, all these make people realize the importance of sustainable development. The theory of sustainable development shows a strong coherence with the spirit of law, include order, justice, efficiency, and fairness, it embodies the nature of sustainability, fare and common. International economic law adjusts the international economic relationship, maintain the fare and justice of international economic activities, so the idea of sustainable development shows the basic spirit of international economic law, they have common. A lot of international legal documents about international trade and investment have been concluded which embodies the requirement of sustainable development. In the long run, sustainable development is the common goal and common interests of the whole international society, it needs the effort of all the countries, nobody and nothing can vibrate the spirit of sustainable development, it is mandatory. For the happiness of people, we must insist on sustainable development, it should be one of the basic principles of international economic law.As one of the most important branches of international economic law, international investment law must also insist on and embody the principle of sustainable development which is one of the basic principles of international economic law. The existing agreements about international investment have made some positive responses to sustainable development, but the limits of these agreements should not be ignored. On the level of regional legislation, NAFTA and NBIPs are two typical agreements which are taking care of environment and other interests of sustainable development. Especially NAFTA, it treasures the coordination of investment, trade and environment. But the regional agreements which include the content of investment have limits. They are applicable in limited areas, they do not have universal force to international society. Sustainable development is the common goal and the common interests of the whole international society, it needs the effort of all the countries, so regional agreements about investment can not satisfy this requirement of sustainable development principle. What is more, regional agreements that applied in different areas have many differences, and some of them are even exclusive. Most regional agreements are concluded reflecting the will and interests of developed countries, the criteria adopted in these agreements are also referred to the situation of investment between developed countries, and they are apt to protect the interests of investors instead of those host countries. As to bilateral investment agreements, they also take some positive responses to sustainable development principle, but for the different interests between developing countries and developed countries, there are difficulties in the conclusion, interpretation and implement of bilateral agreements. Otherwise, bilateral agreements are only applicable between the two parties, the force is too limited that they can not reflect the requirement of sustainable development principle adequately which have much to do with the common interests of all people.For the reason that the existing investment agreements have limits, it is necessary to promote the multilateral investment legislation according to sustainable development principle. It is essential to establish and improve the system of multilateral investment legislation for the purpose of promoting sustainable development. Economic interests is the basic goal that investors pursuit, in order to get more economic profits, they sacrifice environmental interests, etc. It is harmful to the host countries'social and public interests, from the perspective of long-term, it is not consist with the requirement of the sustainable development principle. The key question is that the rights and obligations of investors, and investors'private interests and host countries'public interests are not well balanced. So the system of multilateral investment legislation which consists with sustainable development principle should keep an eye on the balance of investors'rights and obligations and interests between private investors and host countries. First, on the orientation of multilateral investment legislation must insist on sustainable development principle, developed countries should take more responsibilities than developing countries, try its best to balance the private investors'interests and host countries'public interests; Second, the definition of investment should not include indirect investment; Third, national treatment may be applied to the establishment and admission of investment as long as it does not vibrate the domestic law which regulate the same questions, meanwhile, for great certainty, the national treatment should supply a reference for"in like circumstance"and emphasize on the goal of measures related to investment; the most favored treatment may refer to national treatment and set a rule of exception; Forth, as to investment protection, multilateral investment legislation should not allow developed countries to expand the scope of nationalization or expropriation, that is consistent with the rights of states to regulate and the customary international law principles on police power, non-discriminatory regulatory measures that are designed and applied to protect or enhance legitimate public welfare objectives, such as public health, safety and the environment , do not constitute an indirect expropriation, the burden of proof is due to investors. Fifth, the dispute settlement process should integrate the advantage of"state-state"dispute settlement process and"investor-state"dispute settlement process, investors must exhaust local remedy and then to seek international arbitrary. Sixth, with the rights investors enjoy they must take obligations accordingly, there are some obligation criteria for investors to obey. For the purpose of protecting public interests, it is reasonable for host countries to take measures prohibiting performance requirement. Seventh, the requirement of transparency is important to both investors and host countries, it could provide them with reasonable anticipation, multilateral investment legislation should reflect transparency.