On The Appellate Mechanism Of European Commission Investment Court System

Investor-State Dispute Settlement(ISDS),as a way to let investors sue directly host states through investment arbitration to settle investment disputes,was once a powerful mechanism in the settlement of international investment disputes.It is generally believed that this dispute settlement mechanism provides investors and the host states with a dispute settlement that is relatively neutral,transparent and de-politicized.However,in recent years,the rapid increase in the number of arbitration cases have caused more and more host states governments to question and worry about the mechanism due to the concerns of the public interest.Such doubts and concerns are manifested in the negotiation of many IIAs.As a game between the two most developed economies,the United States and Europe,the negotiations on the chapter of investment in the TTIP(Transatlantic Trade and Investment Partnership,TTIP)are typical,especially with the EU's attitude towards the dispute settlement mechanism and the proposed concept of establishing the Investment Court System(ICS),which is the most notable one.The issue of how to design the appellate mechanism of the ICS with the characteristics of the EU is typically important for the changes in the mechanism for settling international investment disputes and the positions held by China in the China-EU BIT negotiations that provides great enlightenment.The first chapter may analyze the origin,structure and operation status of investor-state dispute settlement mechanism(ISDS),and recognizes that ISDS has a significant positive effect on the protection of international investment.On the other hand,however,ISDS mechanism has appealed some shortcomings according to its performance.These shortcomings reveal that ISDS mechanism is necessary to be reformed.The establishment of the appellate mechanism is raised to be one of the reform ideas.The relevant attempts to reform the appellate mechanism in ISDS has also been discussed.The second chapter focuses on the ISDS reform in the EU proposed of appellate mechanism of Investment Court System,in particular,the appellate mechanism of ICS.It attracts the attention of a large number of theorists and practitioners.What is more,the EU has already passed the establishment of the ICS Appellate Mechanism in the "EU-Vietnam Free Trade Area Agreement" and is in the process of implementing it.The establishment of the appeal mechanism has brought obvious advantages to the reform,and they raise the significance of the appellate mechanism of the EU International Investment Court System in the reform of the ISDS mechanism.That is,the emergence of the appellate mechanism is the necessary result of the reform of the ISDS mechanism.In the third chapter,this article focuses on the elaboration of the issues and challenges faced by the EU ICS appellate mechanism.Firstly,the appellate mechanism will probably increase the trend of the judicialization of international investment disputes.It will not only affect the efficiency value of the "final and binding" rule of arbitration,but also question the issues such as the scope and jurisdiction of the appellate tribunal.Secondly,the establishment of the appeal mechanism also raises questions about the existence of "over-international law" in the trial authority.It is difficult not only to balance the relevant court rulings and domestic judicial relief,but also to be recognized and implemented by the member states.Thirdly,the establishment of an appeal mechanism will likely increase the emergence of "fragmentation" in the global legal system for international investment.The fourth chapter will combine the analysis of the first three chapters and contact the reality of China-EU BIT negotiations to discuss the position,attitude,and issues that Chinese government should hold regarding the ICS appellate mechanism.Firstly,as the host country,China should be able to foresee that negotiations on bilateral investment agreements between China and the EU are likely to involve negotiations on related issues of investment dispute settlement.Therefore,China should conduct more in-depth research on the nature of the EU's position.Secondly,from the perspective of Chinese investors,the procedural value brought by the appellate mechanism is also in essence beneficial to investors.In the negotiation of the BIT between China and the EU,China should take appropriate measures to balance the interests of investors and the host country in protecting the dual identities.While safeguarding and reforming the ISDS clause,we must also grasp the limitations of the ISDS clause to protect China's economic sovereignty.The conclusions drawn from this article can be summarized as follows.The reform of the current ISDS mechanism is necessary,and the establishment of the ICS appellate mechanism is to a large extent a thorough reform of the ISDS mechanism.Despite the fact that the appellate mechanism still has to face several challenges,it helps to improve the transparency,neutrality,and interpretation of treaties in international investment arbitration.In view of the fact that the EU ICS appellate mechanism has already been put into practice in the "EU-Vietnam Free Trade Area Agreement" and has actually become the development trend of the ISDS reform,our country does not necessarily reject it completely,but should fully understand it.With emphasis and attention to balancing the interests of investors and host countries in the China-Europe BIT,China can conditional support for the inclusion of the appellate mechanism for the ICS in order to promote the reform of the ISDS mechanism.