Research On NAFTA Investor-state Dispute Settlement

Chapter 11 investment dispute settlement mechanism of nafta has been in operation for 24 years.The practical experience reflected in the operation of this system is of great reference value to the international community and China's corresponding investment rules.There are critics and supporters of the system.We find that the criticism mainly focuses on the imbalance of interests in the operation of the system,that is,the over-protection of foreign investors and the over-erosion of national interests in the practice of investment dispute settlement in chapter 11.On this basis,this paper analyzes and demonstrates the imbalance of interests in the operation of the system from the perspective of the operational practices of chapter 11 of nafta.For this reason,the article is divided into five parts.The first part introduces the background,main content and institutional creativity of the dispute settlement system between investors and countries in chapter 11 of nafta.The second to fourth part mainly demonstrates the unbalance of interests between foreign investors and countries exposed by the operational practice of investment dispute settlement in nafta.In view of the procedural law itself has substantial,and vice versa,and investors with the national dispute domain terms of substantive and procedural nature are intertwined,and dispute settlement procedures applicable scope of compulsory provisions in largely determine the dispute solution,we must unify the view of investors and dispute settlement mechanism of the national related issues.Therefore,the second part mainly demonstrates the interest imbalance in dispute settlement from the applicable key obligation clauses,namely fair and equitable treatment clause and indirect expropriation clause.The third part mainly demonstrates the interest imbalance in the process of dispute settlement from the dispute settlement procedure problems exposed in the process of the system operation.The lack of transparency in investment dispute settlement arbitration prevents the public from fully participating in and effectively supervising investment dispute settlement arbitration,and the lack of appeal mechanism for accountability,supervision and error correction makes it impossible for the contracting parties to well control investment dispute settlement arbitration.The fourth part analyzes and demonstrates the imbalance of interests in the settlement of investment disputes from the perspective of the impact of the operational practices of the system on investors and countries throush the aopiicabie obligation clauses and dispute settlement procedures of the system.For foreign investors,it is manifested as excessive protection,while for countries,it is mainly manifested as excessive infringement of national sovereignty,restriction of national regulatory power and excessive threat to public interests.The fifth part mainly introduces the changes of the new NAFTA in terms of relevant obligations and dispute settlement procedures,so as to verify the imbalance of interests between investors and countries in investment dispute settlement.In addition,based on the foregoing discussion,this paper proposes targeted entity clauses and dispute settlement procedures for the reform of investment rules worldwide,including the dispute settlement system between investors and countries,and for the balance of interests of investment rules in One Belt And One Road and the free trade zone in China.