THE REFORM AND DEVELOPMENT OF THE INVESTOR-STATE DISPUTE SETTLEMENT MECHANISM
Keywords:
Investment dispute settlement mechanism, "One Belt, One Road" initiative, China's choice.Abstract
Investment arbitration, which is the dominant method of investment dispute settlement, is being questioned and criticized. The international community is actively exploring the improvement and innovation of the investment dispute settlement mechanism. On the one hand, it is reflected in the judicialization of rigid settlement methods of investment disputes, and on the other hand, it is reflected in the standardization of flexible settlement methods of investment disputes. The diversified development of the investment dispute settlement mechanism is in line with the open and inclusive spirit of the "Belt and Road" initiative. In view of the difficulties in the short term for countries along the “Belt and Road” to discuss and build specialized investment dispute settlement institutions, China should respond to the innovation and development of the international investment dispute mechanism while providing Chinese solutions that meet the needs of the “Belt and Road” construction. Brazil's investment dispute prevention mechanism, establish and improve the investment dispute prevention center; try to establish an international investment court based on the International Commercial Court of the Supreme People's Court; refer to the experience of ICSID under the World Bank, and promote the participation of the Asian Infrastructure Investment Bank in its financing infrastructure Settlement of project investment disputes.References
[1] ICSID, The ICSID Caseload—statistics, 2019,1:7, https://icsid.worldbank.org/en/Documents/resources/IC-SID%20Web%20Stats%202019-1(English).pdf, last visited on 22 February 2019.
[2] UNCTAD, World Investment Report 2018: Investment and New Industrial Policies, New York & Geneva: United Nations, 2018: 92-93.
[3] Yu Jinsong. Research on the balance between the protection of the rights and interests of investors and host countries in international investment treaty arbitration, Chinese Jurisprudence, 2011, 2: 142.
[4] Doug Jones, "Investor-State Arbitration in Times of Crisis", 25 National Law School of India Review 27, 52 (2013).
[5] Cai Congyan. Reflections on the New Development of Foreign Investors Using International Investment Arbitration Mechanisms——Dual Perspectives of Implementation Mechanisms of International Law and North-South Conflicts, jurist, 2007, 3: 108.
[6] Chunlei Zhao, "Investor-State Mediation in a China-EU Bilateral Investment Treaty: Talking about Being in the Right Place at the Right Time", 17 Chinese Journal of International Law, 2018, 112: 111-135.
[7] Liu Wanxiao. Research on Alternative Solutions to Investor-State Disputes, Law Journal, 2017, 10: 95.
[8] Huang Shixi. Innovation of International Investment Dispute Settlement Mechanism from the Perspective of Sustainable Development, contemporary jurisprudence, 2016, 2: 32.
[9] Christoph Schreuer, "Calvo's Grandchildren: The Return of Local Remedies in Investment Arbitration", 4 Law & Practice, International Courts & Tribunals, 2005.
[10] Han Xiuli. Rediscussion on the Revival of Calvo Doctrine——Investor-State Dispute Settlement Perspective, modern jurisprudence, 2014, 1: 122.
[11] Shan Wenhua. From "North-South Contradiction" to "Public-Private Conflict": The Recovery of Calvoism and the New Vision of International Investment Law, Journal of Xi'an Jiaotong University (Social Science Edition), 2008, 4: 11.
[12] Yu Jinsong. International Investment Law, Law Press 2018 edition, 344.
[13] Liang Danni. Research on the Transparency of International Investment Dispute Arbitration Procedures——From "ICSID Arbitration Rules" (2006) and "UNCITRAL Arbitration Rules (Revised Draft)" talk about, Journal of International Economic Law, 2010, 1: 227.
[14] Cai Congyan. Commercialization and “Decommercialization” of International Investment Arbitration, modern jurisprudence, 2011, 1: 160.
[15] Yu Jianlong. On the Principle of Transparency in International Investment Arbitration, Jinan Journal (Philosophy and Social Science Edition), 2012, 9: 64.
[16] Zhu Mingxin. Comments on the "Rules on Transparency in Investment Arbitration" of the United Nations Commission on International Trade Law, Wuhan University International Law Review, 2017.
[17] Dimitrij Euler et al., Transparency in International Investment Arbitration: A Guide to the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, Cambridge University Press, 2015: 33.
[18] Zachary Douglas, The International Law of Investment Claims, Cambridge University Press, 2009: 42.
[19] Xu Shu. The Construction of Abuse Prevention Mechanism in International Investment Arbitration, Law, 2017, 5: 153.
[20] Huang Shixi. The Origin and Response of the EU International Investment Arbitration Court System, Law and Business Research, 2016, 4: 165.
[21] Umair Ghor "Investment Court System or Regional Dispute Settlement? : The Uncertain Future of Investor-state Dispute Settlement", 30 Bond Law Review, 2018, 83: 115-117.
[22] https://icsid.worldbank.org/en/Pages/about/Database-of-Panel-Members.aspx, last visited on 22 February 2019.
[23] Wang Shaotang. Removal of Legitimacy Crisis - Reconsideration of EU Investment Dispute Mechanism Reform, Law and Business Research, 2018, 2: 167.
[24] Ye Bin. Judicialization of the investor-state dispute settlement mechanism in , International Law Studies, 2017, 6: 125.
[25] He Yan. Conflict and Coordination between Intellectual Property and Public Health from the Perspective of Investment Agreements——Thinking Caused by Two "Philip Morris Cases", Law business research, 2013, 6: 49.
[26] Shahla F. Ali & Odysseas G. Repousis, “Investor-State Mediation and The Rise of Transparency in International Investment Law: Opportunity or Threat?", 45 Denver Journal of International Law and Policy 2017, 225: 232.
[27] Zhang Qinglin. Review and Analysis of EU Investor-State Dispute Settlement Mechanism Reform Practice, Law and Business Research, 2016, 3: 151.
[28] Carrie J. Menkel-Meadow et al., Dispute Resolution: Beyond the Adversarial Model, Aspen Publishers, 2010: 270-296.
[29] http://mhjmc.org/sc/ Page_ Format_ 8. php? nws = 602, last visited on 12 March 2019.
[30] Qi Tong. Discussion on the Prevention Mechanism of International Investment Disputes in the Belt and Road Initiative, Law Review, 2018, 3: 80.
[31] Catharine Tit "Non-adjudicatory State-State Mechanisms in Investment Dispute Prevention and Dispute Settlement: Joint Interpretations, Filters and Focal Points", 14 Brazilian Journal of International Law, 2017, 37, 46-47.
[32] Shirley A. Wiegand, "A Just and Lasting Peace: Supplanting Mediation with the Ombuds Model", 12 Ohio State Journal on Dispute Resolution, 95, 98, 112 (1996).
[33] http://ombudsman.kotra.or.kr/eng/au/poelb.do, last visited on 23 March 2019.
[34] The Korean Foreign Investment Promotion Act Enforcement Act Paragraph 3 of Article 21-3 stipula