On The Inconsistency Of International Investment Arbitration Awards And Its Governance Path

With the deepening of the reform of transparency in the international investment arbitration system,more and more international investment arbitration awards are known to the world,which exposes the inconsistency of international investment arbitration awards.Based on the analysis of existing academic theories,we can divide inconsistent decisions into four categories.First,different tribunals come to different conclusions concerning same investment rights based on a different commercial situation.Second,different tribunals come to different conclusions concerning similar investment rights based on a different commercial situation.Third,different tribunals come to different conclusions concerning same investment rights based on a same commercial situation.Forth,different tribunals come to different conclusions concerning similar investment rights based on a same commercial situation.There have been lots of studies on the reasons of inconsistenct awards.The most representative theory concerning the reasons of inconsistency is that many researchers divide inconsistent decisions into two categories,that is substantive reason and procedural reason.However,few scholars analyze the reasons of inconsistency from the perspective of explanation."Inconsistent explanation" includes "Reasons of the objection of explanation","Reasons of the subject of explanation" and "Reasons of the method of explanation"."Reasons of the subject of explanation" includes "the ad hoc nature of tribunal" and "the diverse value pursuit of tribunal"."Reasons of the objection of explanation" includes "the fragmentation of the international investment law" and "the ambiguous terms in international investment treaty"."Reasons of the method of explanation" includes "the uncertainty of the rules of explanation".The rules of international investment arbitration are designed on the rules of international commercial arbitration.Finality is one of the most salient features of international commercial arbitration.In order to ensure the finality of international investment arbitration awards,the drafters stipulate that parties must abstain from external remedies,such as appeal,and that arbitral awards shall only be remedied by internal annulment process.These limited reasons of revocation can only remedy the procedural legitimacy,while do not involve the correctness of the entity.However,the inconsistency in international investment arbitration system is precisely caused by the inconsistency of substantive facts and the inconsistency of explaination.As a result,according to the existing international investment arbitration rules,it is difficult to remedy the inconsistency of international investment arbitration awards by the internal relief procedures.In addition,the inconsistency of international investment arbitration awards undermines the certainty and coherence of international investment law,which indirectly undermines the predictability and reliability.All of these make it hard for host countries and investors to judge the possible legal effects of their actions by the existing international investment law.Its also have a chilling effect on the domestic regulatory actions of the host country.Thus,the inconsistency of international investment arbitration awards becomes a trigger point for the legitimacy crisis in investment treaty arbitration.It will also trigger the crisis of credibility in international investment arbitration system.Therefore,it is particularly necessary to conduct targeted governance on the inconsistency of international investment arbitration awards.From the macroscopic and microcosmic perspectives,combining the relevant academic theories and international practices,the governance path of the inconsistency of international investment arbitration awards can be distinguished as"Unified governance path" and "Regional governance path"."Unified governance path" refers to the unified governance at the global level."Regional governance path"refers to the governance of inconsistency of international investment arbitration awards from a regional perspective,for example,remedying the inconsistency in a single treaty text.Due to different interests of different countries can not be coordinated and the "prisoner's dilemma" triggered by the competitive relationship between some countries in attracting foreign investment,plus the existing international practice,it is not difficult to see that,at this stage,the "Unified governance path" dose not have the conditions for implementation.On the other hand,the "Regional governance path" is more feasible than the "Unified governance path".Therefore,it will be better way to remedy the inconsistency of international investment awards by the "Regional governance path"."Regional governance path"can be divided into three types."updating the treaty text and clarifying the treaty terns","establishing the joint interpretation mechanism of the contracting states" and"establishing regional appellate mechanism".With the further deepening of "Reform and Opening" as well as the "One Belt,One Road",China,as the largest developing country in the world,needs a good international investment dispute settlement mechanism to escort the development of China's foreign investment economy.In addition,the case of Sanum Investments Limited v.Lao People's Democratic Republic has exposed that China is facing the potential risks of inconsistency of international investment arbitration awards.Therefore,China should learn how to explain the meaning of terms of international investment treaty in a better way from UNCTAD.There are still many other beneficial measures,such as updating the treaty text,clarifying the treaty terms,establishing joint interpretation mechanism and regional appellate mechanism.