Research On Legal Issues Of Third Party Participation In The Field Of International Investment Arbitration

In recent years,the international community has gradually realized the conflict between the public interest of international investment disputes and the confidentiality of arbitration procedures.The legitimacy of international investment arbitration has been questioned.More and more non-governmental organizations have required application to participate in arbitration procedures,in order to supervise the procedures and achieve the purpose of protecting public interest.Improving the transparency of investment arbitration and accepting written comments from a third party began to appear in various international arbitration rules and practices,laying a good start for third party participation in investment arbitration procedures.With the advancements of international rules and practices,the subjects of third party participation have gradually expanded,and are no longer limited to participation based on public purposes.There have also been requests from non-disputing contracting parties to apply for participation in arbitration proceedings based on treaties,further enriched the connotation of the third party participation.However,what kind of status should the third party hold in the arbitration process,what rights should the third party enjoy and what obligations should the third party bear,how should the third party be regulated,etc,are still controversial and inconclusive.Throughout the current international rules and international practices,although some provisions and changes have been made in the disclosure of arbitration information and the acceptance of third party's statements,the international rules have notmentioned the status of third party in the arbitration procedures.Under the current international rules,the status of a third party is still unclear.It can be seen that on the one hand,the international community is beginning to hold a more open attitude towards third party participation in arbitration under the justification of international investment arbitration.But on the other hand,it has never recognized the status and rights of third parties.This incomplete transformation runs counter to the original intention of third party participation for a preferable protection of public interest.The consequence is that some rules are in form,and it is difficult to truly exert practical effects of protecting the public interest.Meanwhile,given the particularity of the identity of non-disputing contracting parties,how to ensure their participation rights in the arbitration process without compromising the interests of the parties is also an issue that we need to think about.Therefore,for the reform and improvement of the third party participation,this paper will conduct in-depth discussions through theoretical analysis and empirical research.This article consists of four parts:The first chapter expounds the theoretical basis of third party participation in international investment arbitration.This paper first introduces the concept of third party participation in international investment arbitration,then discusses the classification of the third party,and separates the third party participation from the concept of arbitration transparency and amicus curiae,laying the foundation for the discussion of this article.Secondly,by disserting the characteristics of international investment treaties and investment arbitration procedures,the legitimacy and necessity of third party participation are demonstrated from two aspects of substantial law and procedural law.The second chapter introduces the international rules and international practices of third party participation in international investment arbitration,and analyzes the advantages and disadvantages of their rules.Through the comparison of the NAFTA,ICSID arbitration rules,UNCITRAL arbitration rules on those provisions about third party participation,combined with the study of specific arbitration cases,this paper analyzes the development and current status of third party participation,summarizes the advantages of the current international rules,and then concludes those following questions: the third party's position in investment arbitration is not clear,the participation is not enough,and the participation is not effective.In order to truly realize the value of the third party participation,to truly make it serve the publicinterest,to enhance the transparency of investment arbitration and public participation,it is necessary to make some targeted reforms based on the above existing problems.According to the research of the second chapter,the third chapter proposes suggestions for the improvement of third party participation in international investment arbitration.First of all,the status of the third party in the arbitration process must be resolved.In order to realize the effective participation and full function of a third party,while at the same time regulating their participation so as not to be maliciously abused,it is necessary to recognize the independent status of the third party in the arbitral proceedings,which is the premise of giving them rights and setting them obligations.With regard to whether a specific individual can be allowed to participate as a third party,the arbitral tribunal should retain full discretion that is not subject to the constraints of the parties,and considering the special political status of the non-disputing contracting party,it shall be distinguished from other third parties in the qualification review.For a non-disputing contracting party,it has a natural right to the interpretation of the treaty,but its participation in the remaining factual issues needs to meet the requirements of relevance,otherwise it may be suspected of intervening in the internal affairs of other countries;for other third parties,its legitimate sources in the public interest factor of international investment arbitration,it must meet the requirements of public welfare,neutrality and profitability.Secondly,in order to make up for the shortcomings of the existing international rules,the subsequent revisions should give third parties the right to obtain arbitration information,the right to express independent opinions,and the right to obtain an arbitral tribunal's response;and for the purpose of balancing the interests of the parties and not have an excessive impact on the superiority of the arbitration system itself,it is also necessary to set some obligations for third parties,including the obligation to reveal personal information,the obligation of not damaging the order of arbitration,the obligation to circumvent confidential information and the obligation to secure arbitration information.The fourth chapter analyzes China's current national conditions and provides a foundation for China's choice of third party participation in international investment arbitration,further more proposes some countermeasures based on this.Although the third party participation has made great progress in the international community,it is still necessary to analyze in depth whether China should choose it for China's current national conditions.In view of the current international legal environment,democraticparticipation and public interest protection have become the trend of the times.Under the advantage of economic globalization,China should maintain a positive attitude to adapt to the rule of law in globalization and become a participant of rules instead of being eliminated by the rules;Moreover,China's economy has begun to transform,and the demand for foreign investment is growing,the admission of third party participation can promote China to establish bilateral investment agreements with more developed countries,providing Chinese investors with broader overseas investment opportunities.Meantime,the third party participation is intrinsically consistent with the value pursuit of China's sustainable development policy,and can effectively help China's implementation of the control measures to protect the public interest.Moreover,the third party participation recognizes the rights of non-disputing contracting parties and provides a possibility for China to better participate in the interpretation of international rules and to proactively defend its interests in interest-related cases.In general,the third party participation is of great benefit to China,China should positively participate in the exploration and practice of third party participation rules,but at the same time,it should strictly regulate the rules of third party participation,formulating the rules first and controlling the risks.On this basis,this paper proposes some specific rules on third party's rights and obligations for reference.