Construction Of The RCEP Investor-State Dispute Settlement Mechanism

The Regional Comprehensive Economic Partnership(RCEP)does not provide an investor-state dispute settlement(ISDS)mechanism in its investment chapter,but leaves it for discussion at a later date.This approach is obviously disadvantageous for resolving RCEP investment disputes.As a regional investment agreement,RCEP can refer to ISDS mechanisms in similar regional investment agreements when constructing its own ISDS mechanism.However,the current ISDS mechanism is in a critical period of reform,and different countries have different reform positions,which are mainly divided into three camps: reformists,improvementists,and revolutionaries.In such a complex situation,building the ISDS mechanism in RCEP is a huge challenge.At the same time,some special factors of RCEP also need to be considered when constructing the ISDS mechanism,such as: the large number of RCEP member countries increasing the difficulty of coordination,the differences in rules of ISDS mechanism in existing agreements between member states,and the different attitudes of member states towards ISDS mechanism.This article mainly categorizes the four types of regional investment agreements that can be referenced: First,the US model,which advocates modest improvements to existing ISDS mechanisms.Second,the EU model,which advocates reforming existing ISDS mechanisms,mainly referring to the establishment of a regional investment agreement international investment court;Third,the return of Calvoism,which advocates abandoning the ISDS mechanism;Fourth,the China-ASEAN Free Trade Agreement(CAFTA)mode,mainly refers to the ISDS mechanism stipulated in Article14 of this agreement.Compared with other ASEAN-centered free trade agreements,the ISDS mechanism in CAFTA provides more detailed provisions at the crossroads,which is highly inclusive.By comparing and analyzing the ISDS mechanisms in the above existing regional investment agreements,it is found that CAFTA is highly compatible with RCEP,manifested in similarities among member countries,member countries have similar attitudes towards the ISDS mechanism,and the ISDS mechanism is in line with the concept of "peace first" of RCEP member countries.In addition,the ISDS mechanism in CAFTA is relatively flexible and extensive,basically meeting the interests and demands of different member countries for the ISDS mechanism,so building the ISDS mechanism in RCEP can be based on CAFTA.Certainly,building on CAFTA does not mean copying the ISDS mechanism in CAFTA,but rather analyzing its strengths and weaknesses,and borrowing the parts that are compatible while deleting the parts that are not,to meet the special considerations of RCEP.Based on the analysis,the specific suggestions for designing the ISDS mechanism clauses in RCEP mainly revolve around the following aspects: First,clearly define the scope of application of the ISDS mechanism in an affirmative and negative manner,and clarify relevant concepts;Second,establish a pre-procedure,such as retaining the mandatory consultation procedure in CAFTA,using local remedies as far as possible,setting up a dispute screening procedure,and rejecting obviously unfounded claims;Third,basically adopting the dispute resolution procedures in CAFTA,and suggesting using negotiation and mediation methods to resolve disputes,setting up a joint interpretation committee,and improving transparency through rulemaking;Fourth,adding a correction procedure,mainly including setting up an appeals mechanism and applying the annulment mechanism.