| Bilateral investment treaties(abbreviated as "BITs")aims to adjust the relations between the two contracting states and to promote and protect the investment and trade activities between signatory countries.The Investor-State Dispute Settlement(abbreviated as “ISDS”)has drawn great attention since it plays an irreplaceable role in properly settling the disputes between investors and the host country,especially when the relevant problems become increasingly severe in China.In order to do some intense research on this mechanism,this thesis studies the BITs which China have signed with comparative and empirical research method.The detailed research topics as follows:In the first part,the author elaborates the ways of dispute resolution that Sino-foreign BITs provide,including settled amicably,local remedies and international arbitration,and vertical analyzes the differences,characteristics,applicable conditions and limitations of different processing methods in different bilateral investment treaties.At the same time,through horizontal comparative analysis,the author figures out the relationship among them and the problems in the connecting of them.In terms of settled amicably,it is a preferred method when deal with the controversy,because of its optional,flexible,convenient,etc.If the dispute cannot be settle down through negotiation,the investors can choose to look for local remedies or international arbitration,however,many Sino-foreign BITs have specific provision on this issue,such as the investors should choose only one way in the two,or the investors should exhaust all local remedies at first,etc.In the second part,the author comparatively analyses the evolution of the range of the issues can institute international arbitration proceedings in ISDS in Sino-foreign BITs.The statements on this issue have go through three phases,during the first phase,the issues “concern compensation” can institute international arbitration proceedings;during the second phase,the international tribunals have jurisdiction over “any dispute” concerns investment;during the third phase,the range of the issues that can be adjudicated by the international tribunals was set by affirmation or negation.The major reasons are that China has gone through different historical periods and that different invest nation has different bilateral investment flow.In the third part,through the aspect of the explanation and legal application of ISDS in Sino-foreign BITs,the author deeply researches the mechanism.According to the author,the major problems are: the trend of attaching more importance on international laws than domestic laws in legal application,the strict restriction of fork-in-the-road clause,the risk of the enlargement of explanation of umbrella clause,the vagueness of applying MFNC to procedural provision,etc.In the fourth part,based on the bilateral investment agreement which have be signed by China and the specific practices in bilateral investment,the author put forward the her suggestions on how to improve ISDS in Sino-foreign BITs.The suggestions majorly refer to the following six aspects: setting specific section to prescribe ISDS,stating that the precondition of international arbitration is exhaustion of local remedies,specifically stating the range of issues that can institute international arbitration proceedings,attaching great importance on domestic laws in international arbitration,using transaction based approach to rule fork-in-the-road clause,limiting or excluding the existence of Umbrella Clause,certainly stating that MFNC cannot by applied in ISDS,etc.Based on the research on all Sino-foreign BITs,the author systematically elaborates the problems in ISDS,combines the fact that China is both an investing country and host country with specific practices and the characteristics of different dispute settlements,and also puts forward her own suggestions on how to understand and improve ISDS.All above makes this thesis meaningful and of great importance. |
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