Research On The Absence And Abuse Of Private Investors’ Right To Appeal In International Investment Dispute Settlement Mechanism

Not all conflicts of interests between private parties and the state administrationhave a relatively effective dispute settlement mechanism. In the field of internationalinvestment, International Center for Settlement of Investment Disputes（ICSID）mechanism provides a dispute resolution exclusively for the disputes between foreigninvestors and the government of the host country. As a basic reference of themechanism above——the investment dispute settlement mechanism of NorthAmerican Free Trade Agreement (NAFTA),to a certain extent, gives a larger playspace to private investors’ right to appeal. This paper considers that, under NAFTAmechanism, private investors’ right to appeal has been "abused". However, in the fieldof international trade, the trade measures of the importing country directly affect theinterests of traders in great degree. In such circumstances, as the main internationalmechanism of coordinating trade relations——World Trade Organization (WTO), itsdispute settlement mechanism does not provide traders whose interests ask forprotection much space to exercise the right to appeal. This paper argues that privateinvestors’ right to appeal is actually "absent" in WTO mechanism. Although AmicusCuriae and the government institutions of trade investigation in relative nations andregions seem to offer the opportunity for private investors to exercise their right to appeal indirectly, if more space can be given to the exercise of private investors’ rightto appeal in WTO, the protection of traders’ interests should be more effective.In fact, both NAFTA investment dispute settlement mechanism and WTO disputesettlement mechanism need to take into full account that how to balance betweenmaintaining the sovereign rights of the host country (or importing country) andfighting for the economic interests of private investors (or traders), in order topromote the development of international investment and trade to the full extent.This paper is based on the comparative study of dispute settlement mechanismbetween WTO and NAFTA. Through an empirical investigation for the runningsituation of private investors’ right to appeal, this paper tries to reveal the status thatprivate investors’ right to appeal is absent in some aspects, while abused in someother ways. In order to balance private interests (economic interests of private partiesas foreign investors or traders) and country’s sovereignty (sovereignty of countries asthe host countries or importing countries), this paper explores the possible path thatthese two dispute settlement mechanisms could continue to repair and improvethemselves. Besides the introduction and conclusion, this article includes four textchapters.Chapter I introduces the representative views of the discussion on the legitimacyof the private right of appeal, and comments on the opinion above connecting with thebasic theory of international law statute of a subject.On this basis, chapter II takes typical cases as study objects, and reveals therunning status of private right of appeal system in WTO and NAFTA comparaily. Onone hand, this chapter explores "absence" reasons of the private right of appeal inWTO, and briefly introduces two indirect ways to exercise the private right to appeal:international trade barrier investigation administrative mechanism and the amicuscuriae; in the other hand, this chapter starting from the substantive rules in Chapter11of NAFTA, explores the legal basis of exercising the private right of appeal andthe systemic causes and deep-seated reasons including concepts etc. behind of"excessive expansion" of private right of appeal in NAFTA.Chapter III introduces the absence of the private right of appeal in WTO. This chapter introduces two ways to indirectly exercise the private right to appealsystematically in detail: one is international trade barrier investigation administrativemechanism, such as "301Article" of USA, Anti Trade Barriers Rules of EuropeaUnion and International Trade Barrier Investigation of the Provisional Rules of China;the second is amicus curiae which is full of controversy in practice.Chapter IV introduces the abuse of private right of appeal in NAFTA. Thischapter introduces the new features of the NAFTA’s investment dispute settlementmechanism at first, which is the basis for the change of Investor-State DisputeSettlement of NAFTA and brings potential worries in regard to the abuse of privateright of appeal while the mechanism innovates. Secondly it introduces the problemsof private right of appeal exposed in practice. At last, it puts forward severalreasonable strategies to reconstruct Investor-State Dispute Settlement mechanism.