Research On The Legal Regulation Of Private Illegal Investment In International Investment Arbitration

For a long time,the purpose of international investment agreements to promote and protect investment and the preference of international investment arbitration tribunal for investors have led to the imbalance of interests between investors and host countries in the field of international investment arbitration.Foreign private investors have carried out a series of illegal investment acts under the trend of interests,which has seriously damaged the economic interests of the host country.With the economic development of the host country and the strengthening of the international voice,the national consciousness is awakened to pursue sustainable development and safeguard public interests.Therefore,the host country should take timely regulatory measures to regulate the illegal investment of foreign private investors,improve relevant domestic laws and regulations and international investment agreements,and balance the interests of investors and domestic public interests.The first chapter introduces the emergence and definition of private illegal investment in international investment arbitration.This paper analyzes the current situation and reasons of the imbalance between the interests of the host country and private investors under the background of investment liberalization.This paper expounds the definition of private illegal investment behavior in international investment arbitration.First,the time standard of illegal investment behavior,whether only the behavior in the establishment stage constitutes illegal investment or the illegal behavior from the establishment stage to the operation stage constitutes illegal investment;The second is the behavior standard of illegal investment behavior.The common ones are investment obtained through illegal means,no actual operation in the host country,illegal investment in commercial activities,etc;Third,the scope and standard of illegal investment.The second chapter analyzes the substantive issues of the legal regulation of private illegal investment.First,there is a lack of clear standards for general terms,which is specifically reflected in the expansion of the definition of "investment" and the incompleteness of interest rejection terms.The broad definition of investment provides sufficient protection for investors in developed countries,but increases the difficulty of supervision of the host country,sacrifices the economic sovereignty of the host country,and expands the scope of matters that investors can submit to the arbitral tribunal,As a result,the host country is frequently sued.Second,the rights and obligations of investors and the host country are asymmetric,which is reflected in the difficulty of the regulation right clause of the host country and the lack or ambiguity of the investor obligation clause.At present,the current situation of the imbalance between the interests of private investors and the host country and the format of balanced international investment agreements need to include investor obligations in international investment agreements.The model of only giving investors rights without obligation clauses has greatly contributed to the legitimacy crisis of private investors’ investment behavior.The third chapter discusses the procedural issues of the legal regulation of private illegal investment,the first is the refusal of jurisdiction and the inadmissibility of claims for illegal investment,and the second is the investor’s jurisdiction over the counter claim of the host country,which is specifically reflected in the investor’s consent to the jurisdiction of the counter claim of the host country and the relevance of the counter claim of the host country,Third,the proof standard and degree of illegal investment are not unifiedThe fourth chapter discusses the improvement of the international investment arbitration system and the legal regulation of foreign private investors’ illegal investment in China.The improvement of the international investment arbitration system includes the improvement of the international investment arbitration agreement and the international investment arbitration procedure.It is necessary to define the relevant entity clauses,clarify the investor obligation clauses,limit the interpretation power of the arbitration tribunal and improve the transparency mechanism.The legal regulation of illegal investment by foreign private investors in China mainly includes:at the level of domestic law,the laws and regulations observed by investors are not specific and the negative list is inconsistent with laws,regulations and policies;At the level of international investment agreements signed with foreign countries,the provisions on the scope and form of investment are unclear and the international investment agreements are asymmetric.As the host country,China should improve the legal regulation of illegal investment by foreign private investors.On the one hand,we should improve China’s foreign investment legal system,strengthen the supporting application of the foreign investment law and other laws,strengthen the timely cleaning up of laws and regulations,and clarify the formulation basis and interpretation rules of the negative list.On the other hand,we should improve the investor obligations provisions of international investment agreements,optimize the expression form of the definition of "investment" and clearly stipulate the obligations of private investors.