On The International Arbitration Of Investment Disputes

At the anaphase of the fifties of the 20th century, in order to obtaineconomic independence and to break away from foreign countries'control of their national economy, most of the developing countries havelaunched extensive nationalization movement to some foreign-investedenterprise, which is of great importance to national economy and thepeople's livelihood, thus making disputes between host country andinvestors emerge on a large scale. Because one party of this kind ofdispute is private investor and another party is a sovereign state, inaddition, the private investor's home country is easy to get involved,relations among them are relatively complicate. Meanwhile, public lawsubject and private law subject, national law and international law,private economic interests and state economic and jurisdiction sovereignare all interweaved together, making it rather difficult to resolve. On theother side, because traditional resolution methods have some defects oftheir own more or less, it became an urgent demand for internationalcommunity to develop a new resolution method, which aims to resolvedisputes of this kind specifically. It was under this background thatConvention on the Settlement of Investment Disputes between Statesand Nationals of Other States arose and provided a new arbitrationmechanism to solve dispute between states and investor.Since then, as a new resolution method, arbitration achievedunprecedented development. Some states stipulate that investmentdisputes between states and other nationals be resorted to internationalarbitration in their national law and bilateral investment treaties. On theother side, many multilateral investment treaties and regional investmenttreaties have also established international arbitration as an importantresolution method to resolve investment disputes between states andother nationals, such as North American Free Trade Agreement,Multilateral Agreement on Investment between OECD member states,Convention Establishing the Multilateral Investment Guarantee Agency, Energy Chart Treaty, etc.However, with continuous development of international arbitrationin the process of dispute resolution, some of its problems began toexpose gradually in the process of arbitration, including problems of theapplicable scope, applicable law, consent to arbitration, local remedies,arbitration transparency and appellate mechanism. As a result, the hoststate's regulation of foreign investment, society, environment and theutilization of public resources were greatly challenged.China is a member state of Convention on the Settlement ofInvestment Disputes between States and Nationals of Other States andhas provided international arbitration as an important resolution methodin many bilateral investment treaties. Under the background of highlyliberalization of international investment, the problem of how to makebetter and full use of international arbitration in international investmentdisputes, so as to make a good balance between state sovereignty andprotection of the rights of foreign investors, has become a problem thatwe must confront in the process of legislation on investment and treatypractice.On the basis of analyzing problems that exist in the process ofinternational arbitration between states and investors, and combingChinese practice related to international investment dispute arbitration,this paper proposes some views which may help China to better utilizeinternational arbitration to solve international investment disputes. Thispaper includes four parts: PartⅠintroduce production and developmentof international investment dispute arbitration; PartⅡanalyzesstipulations on international investment dispute arbitration in maininternational treaties, including Convention on the Settlement ofInvestment Disputes between States and Nationals of Other States,North American Free Trade Agreement, Multilateral Agreement onInvestment between OECD member states, American Model BIT,Energy Chart Treaty. PartⅢanalyzes some problems that exposed inthe practice of international investment dispute arbitration in terms of applicable scope, applicable laws, consent to arbitration, local remedies,transparency and appellate body. PartⅣexplains China's practice oninternational investment dispute arbitration, including relations with theInternational Centre for settlement of Investment Disputes andstipulations on international investment dispute arbitration in bilateralinvestment treaties, and on the basis of which, bring forth some viewsthat may help China to better utilize international arbitration to resolveinternational investment disputes.