| With the deepening development of economic globalization,economic and trade exchanges between countries are becoming more and more frequent.At the same time,the volume and scale of transnational direct investment is growing.With the mutual benefit and benefit sharing between investors and host countries,there are more and more investment disputes.In order to solve the legal disputes of international investment between investors and host countries in an efficient,orderly and fair manner,the International Center for settlement of Investment disputes(ICSID)came into being in 1965 at the initiative of the World Bank.Looking at the recent practice of international investment arbitration,it is not difficult to find that the former is paid more attention to and protected in the game between the economic interests of investors and the public interests of the host country.The restriction or deprivation of the property rights of foreign investors by the host country based on the realization of public policy objectives and the protection of the public interest is in most cases considered illegal by the international investment tribunal.The host state even need to take responsibility for a huge amount of compensation.In view of the shortage of ICSID for the protection of public interests,the author proposes to set exception clauses in bilateral investment agreements to limit the rights of ICSID to claim jurisdiction,and to supplement and explain important concepts so as to preventing ICSID from being extended to investors,to enhance the transparency of arbitration procedures and improve the mechanism of the selection of arbitrators.We should establish an arbitration award appeal system and improve the arbitration award supervision and correction mechanism.Looking at the bilateral investment agreements China has signed with other countries in the past 20 years,China has given foreign investors the right to directly resort to international investment arbitration,and the standard of compensation for expropriation and investment damage is also raised.Our country is in the economic transition period,the economic development pays more attention to the scientific sustainable development,pays more attention to the environment,the public health,the human rights and many others aspects protection.This will inevitably touch the interests of foreign investors who invest in this field,so the protection of high standards for investors will undoubtedly bring hidden dangers to the protection of public interests in China.Combining the current status of concluding of bilateral investment agreements(BITs)between China and other countries and the negotiation of bilateral investment agreements(BITs)with the United States,this paper puts forward some suggestions on how to improve the public interest protection clauses in our bilateral investment agreements(BITs).It mainly includes trying to establish the investment dispute settlement mechanism outside ICSID,such as establishing the arbitration tribunal to deal with the investment dispute between China and the United States,including the ADR dispute resolution mechanism.Clarify the relevant concepts to avoid the ICSID to make arbitrary interpretation of the public interest clause,clear the concept of "indirect expropriation" and the judgment standard,and formulate the basic security interest exception clause;We should formulate transparency clauses of investment arbitration,disclose arbitration procedures and arbitration documents conditionally,strengthen the system of government information disclosure and the construction of non-governmental organization organizations,establish an appeal mechanism for investment arbitration,and establish an interim appeal review mechanism between China and the United States,and so on. |
