The Nature Of International Investment Treaty Arbitration

Today, in spite of the increasing international communications in many fields, the global governance and domestic governance in politics and operation remain separated. But, in many regulation and administrative matters, they have been closely intertwined. Private law may cause a lot of disputes involving public law matters, while international law also affects national regulation. Both for the domestic or the global governance, such mutual penetration and influence have raised higher and higher demands to the decision-makers and operators. The domestic regulators are also participants of global mechanism rather than domestic regulators simply. At the same time, the international regulators have enjoyed more and more independence and discretion in some situations. But now they also must be restricted by a lot of factors. The international investment arbitration tribunals review and regulate the behaviors of the host countries, and protect investors from harming by unlawful state conduct.In recent years, while the number of cases of international investment treaty arbitration increases year by year,there exposes more and more "legitimacy crisis", such as the inconsistence of arbitration awards, the lack of public interest consideration, excessive protection of investors, and the interference with the host country's sovereignty, etc. Scholars have made some suggestions for improvement, such as establishing appeal mechanism of investment treaty arbitration, guiding and limiting the power of interpretation of the arbitration tribunal, the introduction of the"Amicus Curiae", improving the transparency, etc. In this situation, how to play a proper role of this mechanism in order to provide legal help for the development of the international investment? Where is the source of this power? What about the effect? How to exercise this power correctly? It all depends on one problem, that is, what is the nature of international investment treaty arbitration? And what is the difference between the other adjudications? Because correctly understanding the nature of international investment treaty arbitration is the basic precondition to solve the "legitimacy crisis" problem. So this paper attempts to study the nature of international investment treaty arbitration, in order to improve the mechanism and provide theoretical guidance, avoid the spreading of "legitimacy crisis". Major existing theories of the nature of international investment treaty arbitration include commercial arbitration, domestic public law and global governance theory, however each of which has different degree of disadvantages. This paper demonstrates the international investment treaty arbitration is a kind of public law adjudication, a kind of administrative law adjudication, a species of global administrative law adjudication by comparing to the characteristics of these theories.This article begins with the concept and the present situations, demonstrates that the study of the nature of international investment treaty arbitration is very important for improving the international investment treaty arbitration mechanism. It discusses the existing theories of the nature of international investment treaty arbitration by comparing the international commercial arbitration with international investment treaty arbitration; this paper shows the deficiencies of the commercial arbitration theory on the nature of the international investment treaty arbitration. It also elaborates and evaluates the implications of the global governance and public law theory and points out the inappropriateness as the nature of international investment treaty arbitration. According to the characteristics of the international investment treaty arbitration and the difference of public law from private law, this paper demonstrates that the nature of international investment treaty arbitration is a kind of public law adjudication firstly. In the system of public law, according to the meaning of administrative law, the object of the adjudication and concept of public interest,this paper demonstrates the nature of international investment treaty arbitration is the administrative law adjudication. Furthermore, according to the basis and standard of judgment in international treaty arbitration and the arbitrators, the paper reveals that the international investment treaty arbitration belongs to the global administrative law adjudication, points out the rationality in theory and the effectiveness of solving the problem at present. In a word, the nature of international investment treaty arbitration is a species of global administrative law adjudication The aim of studying the nature is to solve the problems at present and to improve the current mechanism of international investment treaty arbitration. This paper puts forward some measures to improve the current international investment treaty arbitration. They include two aspects: openness and consistency. On the openness side, setting up mechanism of public access to information, establishing mechanism of public participation; on the consistency side, establishing institution of long-term employment of arbitrators and unified explanatory standard and appeal mechanism.