Research On The Rule Of Contributory Negligence In International Investment Arbitration

With the accelerating pace of global economic integration,the cross-border flow of capital and technology has become increasingly active,and international investment has become an important way for investors and host countries to achieve a win-win situation.In contrast to the booming international investment,the international investment arbitration is experiencing a crisis of legitimacy,which has been criticized for failing to balance the interests of investors and the host country.Especially when investors are at fault for the occurrence of their damages,if this factor is not included in the scope of arbitration,it will not only lead to unfair arbitration results,but also an excessive indulgence of investor behavior.In order to solve this problem,the provisions of Article 39 of the "Draft Articles on the Responsibility of States for Internationally Wrongful Acts"(hereinafter referred to as the "Draft Articles on State Responsibility " or "Draft")on contributory negligence have attracted the attention of some arbitral tribunals.The citation and direct application of this clause is also showing an positive trend.If Article 39 of the "Draft" can be cited to deal with cases of investor misconduct,it will lead to the reduction of the host country’s liability for compensation,thus avoiding the inherent disadvantages of international investment arbitration that unilaterally protect the interests of investors.Although in the practice of international investment arbitration,there have been many cases of citing Article 39 of the "Draft",the nature of the "Draft" and Article 39 is still inconclusive,and as a rule originated from civil law,if it is directly introduced into the field of international investment,there may be many situations that are not adapted to the characteristics of international investment,and may have some theoretical and practical problems.At the same time,the current International Investment Agreements(hereinafter referred to as IIAs)lack provisions on investor misconduct and contributory negligence,which directly affects the application of the rules in international investment arbitration.Therefore,this paper takes the rule of contributory negligence in international investment arbitration as the research object,and aims to put forward suggestions for the better application of this rule in international investment arbitration.At the same time,combined with the current situation of China’s participation in international investment,this paper provided suggestions for China to use the rule of contributory negligence to participate in international investment,to promote the sustainable development of international investment and safeguard our national interests.This paper adopted the research idea from theory to practice,and put forward the problems existing in the application of contributory negligence in international investment arbitration in both theory and practice,and put forward corresponding conclusions and suggestions.First,through the research on the basic connotation of contributory negligence,clarify its concept and composition in civil law,and lay a theoretical foundation for the subsequent research;secondly,turn the field of vision to the international law,clarify the international law origin of the rule of contributory negligence,and clarify the theoretical issues related to the application of contributory negligence in international investment arbitration;thirdly,through the existing cases,this paper summarized the problems existing in the application of contributory negligence in practice;finally,this paper proposed corresponding solutions for the existing problems.The main contents of this paper are as follows:The first part is mainly responsible for clarifying the basic connotation and development of the contributory negligence rule and its relationship with similar concepts such as the mitigation rule,the predictability rule,and the unclean hand rule.The second part introduces the rule of contributory negligence into the visual threshold of international investment arbitration.By interpreting Article 39 of the Draft Articles on State Responsibility,clarify the basic theoretical issues of the application of the contributory negligence rule in international investment arbitration,including the legal attributes,the stages of application and the manner of application..The third part aims at identifying problems,by summarizing and analyzing the existing typical cases of applying the contributory negligence rule in international investment arbitration,points out the problems in the application of the contributory negligence rule,including unclear standards of application,unclear allocation of responsibility and unclear stages of application.The fourth part is to put forward targeted countermeasures to the problems found in the third part,including the clarification of applicable standards and the method of assigning responsibilities.The fifth part returns the attention to our country,based on the provisions of contributory negligence in our domestic law,and makes suggestions for the future academic research on the rule of contributory negligence and the use of contributory negligence in international investment,in order to better protect our national interests and achieve sustainable development of international investment.