| Due to the particularity of its subject-one party is a private investor and the other is a sovereign state,international investment arbitration often involves public interests.To a certain extent,the process of international investment arbitration award is the process of "several arbitrators review the public policy of the host country".However,international investment arbitration originated from traditional international commercial arbitration and followed the confidentiality principle of the latter’s arbitration process.This conflict between public interest and confidentiality makes the international investment arbitration mechanism face a "legitimacy crisis".In response to this crisis,recently,the amicus curiae system has been increasingly introduced into the international investment arbitration mechanism,allowing individuals or organizations other than the parties to put forward their views from the perspective of broad interests in the process of hearing cases by the arbitration tribunal,so as to assist the arbitrators in making decisions.The participation of amicus curiae enhances the transparency of the international investment arbitration mechanism and makes it possible for public interests to be expressed and safeguarded;But at the same time,it may also cause problems such as the delay of arbitration procedure,the increase of arbitration fees,the disclosure of confidential information and so on.However,generally speaking,the institutional value of amicus curiae far exceeds the disadvantages of the system.From 1993 to 2021,China has been the developing country with the largest amount of foreign direct investment for 29 consecutive years;On the other hand one belt,one road initiative,China’s total foreign direct investment has been growing steadily.Accordingly,the number of foreign investment disputes has also increased significantly.In the process of arbitration and settlement of these investment disputes,the Chinese government and Chinese investors will inevitably face the participation of amicus curiae.In this context,it is undoubtedly of great theoretical significance and practical value to study the problems that may arise from the participation of amicus curiae in the international investment arbitration mechanism,such as subject qualification,examination criteria,the rights and restrictions of amicus curiae,and how the Chinese government and Chinese investors use amicus curiae.The thesis consists of five chapters.The first chapter first introduces the research background and significance,then expounds the research methods,and finally talks about the innovation and shortcomings of this research.The second chapter combs the theoretical basis of amicus curiae participation in international investment arbitration mechanism.It mainly discusses the institutional value and drawbacks of amicus curiae on the basis of revealing the definition and institutional origin of amicus curiae.The third chapter investigates the practice of amicus curiae participating in NAFTA and ICSID arbitration from the perspective of rule basis and classic cases,and summarizes the current situation and development trend of amicus curiae participating in international investment arbitration.The fourth chapter analyzes the specific rules of amicus curiae’s participation in international investment arbitration in view of the subject qualification,examination standards,rights and restrictions involved in amicus curiae’s participation in international investment arbitration mechanism.In particular,it focuses on the analysis of "major interests" and "public interests".The fifth chapter puts forward targeted system improvement suggestions on the development of amicus curiae in the field of international investment arbitration,including expanding the subject scope of amicus curiae,improving the standard of submitting opinions,increasing procedural control and cost control,etc.Finally,it puts forward its own suggestions on how to deal with the amicus curiae system between our government and investors. |
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