On The Main Problems Of Investor-State Dispute Settlement Emerging In Practice And Perfect Proposals

Disputes between investors and host state should be submitted to arbitration,which has been regulated in concluded multilateral or bilateral investment agreements and the chapter of investment in Free Trade Agreement in the world.However,the rulings cannot implement the substantive justice on account of the inconsistence of investment arbitral awards,lack of transparency and the unbalance of interest between dispute parties etc.that a lot of problems of Investor-State Dispute Settlement(hereinafter referred to as the ISDS)has come out in practice.It can be evidenced side by the voice of reforming even abolishing the ISDS mechanism appearing around the world at present.All the provisions of ICSID on dispute settlement have been almost completely included in China's signed Bilateral Investment Agreements.Nonetheless,there are a number defects resulted from lack of experience and other objective reasons in these Bilateral Investment Agreements that is not conducive to maintain the interest of China.This paper analyzes the ISDS in four chapters including problems of the ISDS emerging in practice,reasons causing the problems,suggestions to perfect the ISDS and the relevant considerations of China as sign the Bilateral Investment Agreement illustrated by ICSID as an example.The first chapter elucidates the basic concept of ISDS,compares similarities and differences with the traditional international commercial arbitration,and elucidates the ISDS established in International Investment Agreements,based on the analysis of typical International Investment Agreements taking the investment chapter of NAFTA as an example.The second chapter points out the main problems,which includes uncertainty of rulings,absence of transparence on arbitration procedures and unbalance of interest between investors and the host state of ISDS emerging in practice by analyzing relevant cases,illustrated by ICSID as an example.The third chapter includes two parts.The first part puts forward rationalizing proposals on the specific content of establishing appeal mechanism of investment arbitration based on analyzing the necessity and feasibility toestablish appeal mechanism.The second part puts forward specific proposals to improve transparency based on the practice of International community,by analyzing the necessity to improve transparency.The forth chapter is the relevant considerations of China as sign the Bilateral Investment which includes the evolution of China's attitude toward the ICSID jurisdiction,analysis on the status of ISDS in China,the practice of China's participation in ISDS and the relevant considerations of China as sign Bilateral Investments in the future.