A Study Of Host State Public Interest Issues In International Investment Arbitration

With the further intensification of economic globalization,transnational investment is growing at a high speed,and international investment arbitration and investment treaties are developing rapidly.The typical field of investment arbitration,ICSID,has become the research hotspot or even the focus of international scholars.As one of the most active regions in the international investment community,China has established the second largest network of bilateral investment treaties in the world.At the same time,China’s overseas investors have begun to actively seek to settle disputes over overseas international investment through the ICSID arbitration mechanism,and cases of foreign investors using the ICSID mechanism to bring international investment arbitration to China’s government have also appeared.The international investment dispute between the investor and the host country usually involves the vital interests and public policies of the host country.Private interests for foreign investors and host country public interest is the best interests of the balance between the international investment community has always been an important subject,especially in the recent arbitration practice ignored the host country in the public interest,since under the background of the one-sided emphasis on protecting the interests of foreign investors,the international investment treaty arbitration in the host country public interests protection problem of our country actively use the international investment dispute settlement mechanism is of great significance.It is not only conducive to the development and improvement of the international investment dispute settlement mechanism,but also can promote the maximization of public interests and maintain the general balance of interests between the host country and investors.Combined with the actual situation at home and abroad,China’s capital input and output rank in the forefront of the world.Strengthening the protection of China’s public interests in international investment bears on the overall situation.Therefore,this paper studies the characteristics of the public interest in the international treaty investment arbitration and puts forward the legal countermeasures to our country.This paper is divided into four parts.The first chapter mainly raises the question through the case.This paper expounds the imbalance between the protection of host country’s public interests and the interests of foreign investors from the three aspects of power expropriation,public health exception and national security review,and then defines the meaning of host country’s public interests and discusses the causes of the risk of host country’s interests.Host countries in the second chapter,from the international investment treaties the perspective of public interests safeguard mechanism and path,influence the public interests protection system of international arbitration,the arbitration jurisdiction,the arbitration discretion and the main factors such as transparency mechanism,respectively from the ICSID arbitration system,BITs,UCMCA associated with host countries to protect public interests to explore the mechanism of protection path.The third chapter puts forward the solution of how to seek the best balance between the interests of the host country and foreign investors.It is discussed from three angles of perfecting the relevant provisions in the international investment treaty,the international investment dispute settlement mechanism and arbitration mechanism,and constructing the principle and model of the balance of interests.The fourth chapter,according to the objective situation of China’s investment arbitration practice,puts forward the corresponding improvement suggestions,and further summarizes the experience that China can learn from and the improvement path.The author puts forward some suggestions from the perspective of entity treaty and arbitration procedure mechanism.In terms of entity treaty provisions,it is suggested to clarify the definition of "indirect expropriation" and to add exceptional clauses and clarify the meaning of "fair and just treatment" clause.In terms of the arbitration procedure mechanism,it is advocated that the transparency of the international investment arbitration procedure should be further improved,the impartiality of the arbitration tribunal and arbitrators should be guaranteed,and an authoritative treaty interpretation mechanism should be established to improve the predictability of the arbitration results as far as possible.