Study On The Applicability Of ISDS Mechanism In Overseas PPP Projects

With the continuous development of international investment,PPP,as a model of public-private partnership,has been applied to overseas infrastructure construction projects by many countries.Compared with domestic PPP projects,overseas PPP projects are more complex and have the dual attributes of commercial contract and state contract.Investor-state dispute settlement(ISDS)is an important mechanism to resolve international investment disputes.ICSID,as its core,has jurisdiction over non-pure commercial cases in the charge of "ICSID convention".It was proved by practice that based on the dual nature of the contract and the relative inequality of the subject position of the overseas PPP project,its disputes can be naturally solved by the ISDS mechanism.Through specific cases,this paper analyzes the problems existing in the jurisdiction of ICSID,such as the unclear definition of the investor and the investment,and the distinction of the nature of the dispute,and proposes suggestions to perfect the terms of ICSID Convention and the content of bilateral investment agreements.Combined with the current situation of ISDS mechanism reform in the United States and the European Union,this paper puts forward some countermeasures,such as updating and negotiating new BIT and establishing our own investment dispute settlement mechanism,for the better application of ISDS mechanism in overseas PPP projects,which has great significance to the protection of the rights of China and Chinese investors in the construction of "Belt and Road Initiative".The first part is the introduction,which mainly introduces the background and significance of the research,the research status,research methods and innovation in this field at home and abroad.The second part mainly discusses the coupling of ISDS mechanism in overseas PPP projects.Whether the dispute of overseas PPP project can be resolved by ISDS mechanism depends on whether it conforms to the jurisdiction of ICSID.Therefore,based on the inequality of contract subject position and the mixture of the content,this paper compares it to the jurisdiction of ICSID,and concludes that ICSID is bound to be applied to settle the disputes of overseas PPP projects.The third part points out three problems existing in the jurisdiction of ICSID arbitration by analyzing the dispute focus of Beijing Urban Construction Group V.The Republic of Yemen: first,the identification of investors,especially that of state-owned enterprises;second,the identification of the standards of investment behavior;third,the problem that whether the PPP project dispute should be defined as contract breach or treaty breach.The fourth part proposes suggestions for the better application of ISDS mechanism to overseas PPP project disputes from two aspects.One is to supplement and improve the "ICSID Convention",clarify the subject position of qualified investors of state-owned enterprise,unify the ICSID arbitration application standards and formulate ICSID model clauses;the other is to amend and update the bilateral investment agreement,add the terms of protecting state-owned enterprises and perfecting the definition of investment,achieve an agreement on the "umbrella" terms,and specifically add the settlement of PPP project dispute in the dispute settlement terms.In the fifth part,combined with the current upsurge of ISDS mechanism reform,through the analysis of the reform plans proposed by the United States and the European Union,this paper points out the problems existing in the ISDS mechanism and the direction of the reform,summarizes the impact of the reform on the application of the ISDS mechanism to PPP and the enlightenment to China.In the context of "Belt and Road Initiative",China should play an active role in the reform of ISDS mechanism,establish our own settlement mechanism of investment dispute,and better protect the interests of our country and domestic investors.