Research On EU Investment Court Model And Appeal System

With the changes in the international investment landscape and the growth of international investment,the contradictions in the ISDS mechanism have become more frequent,and the inconsistency of the award and the failure to correct the wrong award often occur.Therefore,the EU proposed to replace the traditional investment arbitration by formulating an investment court system to resolve ISDS.Compared with ISDS mechanism,the investment court system has two major innovations: one is to replace the temporary ad hoc arbitral tribunal by establishing a permanent investment court system;the other is to adopt the two levels of the court of first tribunal and the appeal tribunal.At present,China and the EU are negotiating on BIT.There are already 20 rounds of negotiations as of February 2019,and the 21 st round of negotiations will be ushered in June 2019.The next round of negotiations proposes to negotiate important policies for the investment dispute resolution mechanism.It is also possible,as in CETA and EVTTA,to establish an investment court system to resolve ISDS.For China,whether to accept a permanent investment court model in the EU-China BIT and whether to establish an appeal system is worth exploring.This paper is divided into four parts,analyzes the advantages and disadvantages of the EU adopting the investment court model,and the specific provisions of the EU investment court system on the appeal system,and puts forward my own thinking on the ISDS of the EU-China BIT.In the first chapter,the author first analyzes the reasons behind the EU investment court system in light of the dilemma of the existing ISDS.Secondly,the author briefly introduced the composition of the EU investment court system.Thesystem consists of four aspects: consultation and mediation,the court of first instance,the court of appeal and the recognition and enforcement of the ruling.Since the major innovations in traditional investment arbitration are mainly the judicialization of arbitration and the establishment of an appeal system,this paper mainly analyzes these two aspects.In the second chapter,the author first defines the EU investment court.To clarify the nature of the investment court,one can determine how the model differs from arbitration,and on the other hand provide the basis for the subsequent analysis of the establishment of the appeal mechanism.The author analyzes both the textual expression and the intention,and finally concludes that the EU investment court system should belong to the court mechanism.Now it is criticized by scholars as the result of “mi-lu”,but it is only a semi-finished product in the transitional stage.On this basis,the author analyzes the advantages and disadvantages of the investment court using the court mechanism.On the one hand,to a certain extent,the results of the ruling are guaranteed to be fair,accurate and consistent.On the other hand,there are too many restrictive provisions under the court mechanism,and the institutional mechanisms are more rigid,eliminating the flexibility and freedom of traditional arbitration.And,more importantly,the outcome of a ruling made under a judicial court mechanism will not be effectively enforced once it involves a third country.This is a fatal problem for a dispute mechanism.In the third chapter,under the investment court model,the author mainly analyzes the specific rules of the EU in the appeal mechanism.It is reasonable to maintain consistency in the ruling,balance investor and host country interests,and limit appeals.However,there are still problems,such as affecting the domestic legislation of the host country,ignoring SMEs and inconsistent rulings.In the fourth chapter,the author discusses how China should choose the ISDS mechanism in the process of negotiating BIT with the EU.First,at this stage,China is not suitable to adopt the investment court model to deal with investment disputes,but it can explore the establishment of an appeal mechanism under the traditional arbitration mode.Secondly,the author made some thoughts on proposing China's own plan in the EU-China BIT.First,a feasibility analysis was conducted on the establishment of an appeal mechanism based on arbitration.Concluding China can establish an appeal mechanism based on arbitration.Then,the author demonstrates whether the arbitral award after the appeal relief measures can be implemented.Finally,based on the EU's proposal on the appeal mechanism and the Chinese reality,the author puts forward own thinking from the composition of the appeal arbitral tribunal,the scope of the review,the exercise of the right to appeal,and the creation of the precedent system.