Research On Interest Protection Of Host Country In Environmental Dispute In International Investment Area

In the recent decades,there is a growing trend of the environmental dispute in the international investment area,but the host countries,based on the current IIAs and international investment dispute resolution system,are always forced into a passive position during the process of dispute resolution,and China is also trapped by such by such a problem.The main reason that causes the frequent occurrence of environmental dispute in international investment is the conflict between the improvement of environmental standards of host country and the maximum interests of foreign investors,and the indirect expropriation and the green trade barrier are the primary manifestations which influences the environmental interests and economic development of the host country,even the situation of international politics and economy.The main problems that we are now faced with in the substantive rules are absences of IIA templates,softness and lack of enforcement of current IIA terms and conditions,as well as the inexplicit obligations of investors;in the aspect of dispute resolution procedures,the investor-favourable procedure of ICSID,the commercial background of arbitrators,the privacy of arbitration process and the final and binding award are all against the protection of environmental interests of host country.Regarding the strategy that host country shall take,in the aspect of substantive rules,host country shall promote the draft of IIA template,using both soft and hard stipulations and making clear of the environmental protection obligations of investors,and shall focus on making clear of the conditions for exclusion of indirect expropriation(purpose and procedure requirements),i.e.taking the public interest(environmental protection)as the purpose,satisfying the requirements of nondiscrimination,due procedure,goodness and the principle of proportionality,and adoption of scientific evidences.As to the procedural rules,changes shall be made to such aspects as third party participation procedure,de-commercialization of international investment dispute resolution,lifting the arbitration cost of investor to prevent litigation abuse,establishment of appeal mechanism,and establishment of special organizations to help developing countries to deal with international investment dispute resolution.Meanwhile,the host country shall develop supporting systems,introducing the ideal of “common but differentiated responsibilities” as the basic principle of internal environmental protection rules.China,as a leading country in FDI inflow and outflow,shall establish an comprehensive dispute resolution mechanism which suits the reality of China.China shall hold a positive attitude when making IIAs,and design and apply a universal BIT template under the guidance of principle of justice;make clear that it is allowed to deviate from the IIA to protect domestic weak industry and adopt transitional arrangement;in the domestic rules development,take the ideal of “common but differentiated responsibilities” as the basic principle of internal environmental protection management,cultivate environment protection NGOs,taking advantage of their professionality in the environmental dispute resolution in international investment.