The Dilemma Of Fork In Road Clause And China's Response

Since 2013.the "One Belt and One Road" initiative has enabied China to achieve rapid development of international investment and trade with countries along the routes.n the field of international investment,bilateral investment agreements have the dual significance of promotion and protection.Among them,in addition to the above MFN treatment,umbrella provisions and other contents that provide substantive protection for the contracting parties,a considerable part of the bilateral investment agreement also contains the provisions of ISDS mechanism,namely,the way to solve international investment disputes.Among them,the fork in the road clause,as a provision to prevent double proceedings,plays an important role in how to choose between domestic litigation and international arbitration in international investment disputes.Its purpose is not only to better protect the right of foreign investors to seek relief,but also to prevent investors from improper benefits through dual procedures,so as to protect the interests of the host country.The emergence of the fork in the road clause is therefore a sign of progress in resolving investment disputes in the field of international investment.However,in judicial practice,the fork in the road clause has encountered multiple challenges,unable to play its original role and significance,and has become a "leaky tent".In the existing settlement mechanism of international invesunent disputes.compared with diplomatic protection and domestic administrative and judicial relief of the host country,international arbitration has more obvious advantages and can solve disputes more efficiently,fairly and fairly and protect the legitimate rights and interests of both parties.As the world's first and only institution specializing in the resolution of international investment disputes,ICSID cases have become the only choice for this paper to study and analyze the application of fork road clauses in practice.Based on the empirical analysis of relevant cases,in the application process of the fork road clause,ICSID arbitral tribunal mostly adopts the formalist judgment on the "triple identical standard",which expands the jurisdiction of ICSID to a large extent and intensifies the occurrence of dual benefits of investors using parallel procedures.In recent years,however,the ICSID tribunal has also shown a tendency to focus on substance.In addition,based on the analysis of the BITs signed between China and countries along the "One Belt and One Road",this paper finds that there are some problems in the 52 BITs existing,such as the low applicability of the fork road clause,the lack of ISDS mechanism in some agreements,the incomplete preconditions for international arbitration in the fork road clause,and the principle of exhaustion of local remedies in the wrong application.With the deepening and development of the"One Belt and One Road" strategy and the rapid development of China's foreign investment,how to improve the above issues from China's position and perspective is of great significance to better protect the interests of investors and national interests in China's international investment and better promote and develop investment.Therefore,in view of the above problems,this paper tries to put forward some countermeasures,such as reasonable application of branch clauses in BITs,supplementing and improving the provisions of ISDS mechanism,improving the preconditions of submitting to international arbitration by referring to the European court of justice and NAFTA "transaction act",and discriminating accepting the jurisdiction of ICSID arbitration.This paper is expected to provide an idea for improving the provisions of the fork road clauses in BITs in China and countries along the "One Belt and One Road" line and solving the loopholes and predicament in the existing regulations,so that China's international investment under the "One Belt and One Road" initiative can be more guaranteed and flourish.