The Legal Problemes Of The "Third Party Participation" In International Investment Arbitration

"Third Party Participation" rules in international investment arbitration means in the process of an arbitration, the non- dispute parties provide some opinions concerning the facts or legal to the case, to influence the arbitration. The "Third Party Participation" included the ordinary Amicus Curiae and Non- dispute contracting party (motherland of investor participation).At present in several main investment arbitration mechanisms, ICSID arbitration mechanism created by refer to the international commercial arbitration, UNCITRAL arbitration mechanism is directly use international commercial arbitration to solve investment disputes, thus investment arbitration mechanisms all have a privacy feature in early stage. Accordingly, the traditional international investment agreements do not include the "Third Party participation" rules. However, the Investor-State Arbitration usually involves the management measure of government for the purpose to protect the public interest, thus, the award of international investment arbitration will affect the host country's management measures. At this point, the award based on the security procedures will affect the implementation of national policy, it will have detriment to the national public interest, the legality and legitimacy of international investment arbitration. Hence, the "Third Party participation" rules emerge gradually in relevant arbitration rules and cases. Lately, China is negotiating BIT with United States, Canada and so on the developed countries, these countries have proposed the "Third Party participation" clause in the draft BIT. Then, should or should not China accept the "Third Party participation" clause? Therefore, the "Third Party participation" rules become a subject for urgent solution.After an in-depth research, this article concludes that to China, a developing country act as a major capital importing country in the international investment activities, accepts the "Third Party participation" rules in certain constricts will do more good than harm on the whole.Except for the introduction and conclusion, this thesis is divided into four chapters:The first chapter introduces how the "Third Party participation" rules enter into the procedure of international investment arbitration and get rapid development.The second chapter discusses the latest development of "Third Party participation" rules in ICSID arbitration, UNCITRAL arbitration and US. Model BIT (2004). In order to provide reference to the question that whether China should accept the "Third Party participation" rules, this chapter also summarizes the arbitral tribunal's attitude towards the "Third Party participation" rules after analyzed some international investment arbitration cases.The third chapter introduces the potential benefits and negative effects of accepting "Third Party participation" rules. Meanwhile based on China's actual conditions, this chapter analyzes the advantages and disadvantages of China accepting "Third Party participation" rules in BIT.The fourth chapter presents some suggestions for how to build China's own appropriate "Third Party participation" rules based on China's actual conditions.