《中欧全面投资协定》投资者-东道国争端解决机制构想——以ISDS改革为视角

《中欧全面投资协定》投资者-东道国争端解决机制构想——以ISDS改革为视角An Outlook for the Possible ISDS Mechanism of China-EU Comprehensive Agreement on Investment — from the Perspective of ISDS ReformIn 2014, China and the European Union (“EU”) initiated their first round of negotiations on the investment agreement. After 35 rounds of “tug-of-war”, on 30th December 2020, China and the EU have finally concluded in principle the negotiations for the Comprehensive Agreementon Investment(“CAI”). The text of the CAI is partially released on 22nd January 2021.2014年，中国和欧盟启动了第一轮的投资协定谈判。

历经35轮拉锯，双方最终于2020年12月30日完成了《中欧全面投资协定》（EU-China Comprehensive Agreement on Investment，“CAI”）的谈判，并于2021年1月22日公布了CAI 部分文本。

[1]The CAI aims to replace and unify the bilateral investment treaties (BITs) entered by China and 26 out of the 27 member countries of the EU respectively so as to establish a unified multilateral institutional framework, which covers, inter alia, the market access commitments, information transparency, fair trading and competition, fair labor treatment, sustainabledevelopment and etc. It is worth noting that, in regard to the dispute resolution mechanism, the CAI has not directly set out a set of rules for the Investor-State Dispute Settlement (“ISDS”), but adopted the similar route as is in the Regional Comprehensive Economic Partnership (RCEP), which was signed by and among China, Japan, Korea, Australia, New Zealand and the 10 member countries of the Association of Southeast Asian Nations on 15th November 2020. That is, the signatory parties vowed to conclude the negotiations on ISDS mechanism within 2 years after the signing of the CAI. China and the EU had also specifically agreed that such ISDS mechanism would take into account of the ISDS reform currently carried out by the United Nations Commission for International Trade Law (“UNCITRAL”). In this regard, what kind of ISDS mechanism that will be finally adopted in the CAI is particularly worth the attention.《中欧全面投资协定》旨在取代中国和欧盟其中26个成员国之间现有的双边投资条约，建立一个统一的制度性框架，其中涉及市场准入、透明度、公平竞争、劳工待遇、可持续发展等等方面。

然而，值得注意的是，《中欧全面投资协定》中关于投资者-东道国争端解决（Investor-State Dispute Settlement，“ISDS”）机制方面没有具体规定，而是采取类似于中国与日本、韩国、澳大利亚、新西兰及东南亚国家联盟十国共十五方于2020年11月15日正式签署的《区域全面经济伙伴关系协定》（Regional Comprehensive Economic Partnership，“RCEP”）中的约定，即缔约方承诺在该协议签署后的2年内完成ISDS机制的谈判。

中欧双方在CAI中还特别承诺，该ISDS机制的设立将会考虑联合国国际贸易法委员会（UNCITRAL）组织下的ISDS改革（“ISDS改革”）方面获得的相关工作成果。

[2]如此一来，《中欧全面投资协定》最终将采取何种ISDS机制，就尤为值得关注与期待。

In light of the above, this article will first introduce the ISDS reform led by the UNCITRAL with particular attention paid on the reform submissions by China and the EU, which may shed a light on the possible positions to be adopted by China and the EU in the CAI with respect to ISDS mechanism. Based on the above analysis together with the consensus and progress achieved so far in the ISDS reform, this article will then look forward to the ISDS mechanism that may be eventually adopted in the CAI.有鉴于此，本文将首先梳理UNCITRAL组织下的ISDS改革，并就其中欧盟与中国关于部分关键问题的立场进行简要分析，以期窥见双方在《中欧全面投资协定》项下ISDS条款的商定中可能倾向采取的立场。

最后，基于上述分析以及ISDS改革目前已取得的共识与阶段性进展，本文将对《中欧全面投资协定》可能最终呈现的ISDS机制进行展望。

1. ISDS Reform led by the UNCITRAL UNCITRAL组织下的ISDS改革As an essential part of international investment dispute resolution, ISDS mechanism has now been adopted or incorporated into many International Investment Agreements (IIAs). While ISDS provisions in investment treaties may vary, they normally have an arbitration-based dispute settlement mechanism with the following features: (i) the claimant/investor may bring a claim directly against the host State; (ii) the dispute is resolved by an arbitral tribunal constituted ad hoc for that particular dispute; and (iii) both parties to the dispute, i.e., the claimant/investor and the respondent/State, playan important role in the appointment and selection of the arbitrators. It is undeniable that the ISDS mechanism plays a crucial part in the protection and promotion of investment. The ISDS mechanism empowers the investor to protect their interests against the States in a more active and fairer way compared to thed iplomatic protection provided by the investors’ own countries.作为国际投资争议解决机制中极为重要的一部分，ISDS机制已被大多数国际投资条约纳入。

虽然投资条约中ISDS条款各不相同，但它们通常都规定了基于仲裁的争议解决机制，并且具有以下特征：1）投资者可直接针对东道国提出请求；2）投资者与东道国之间的争议由专为该争议组成的仲裁庭解决；3）争议双方，也即投资者和东道国，均有权利参与仲裁员的提名。

[3]不可否认的是，目前通行的ISDS机制在促进外商投资、保护投资者方面发挥了重要的作用。

通过ISDS 机制，投资者将不再必须通过母国的外交保护去实现自己的投资利益，而可通过以提起仲裁这一更为主动、也更为平等的方式向东道国主张自己的权益。

However, in recent years, the drawbacks of the current ISDS mechanism have become increasingly pronounced, especially the lack of consistency and coherence in the arbitral awards. First of all, there is a lack of coherence and consistency in the investment protection standards. The current international investment treaty regime is rather fragmented. Multilateral investment treaties are rather rare while most of international investment treaties are only bilateral and investment protection standards provided in these BITs vary widely. This problem is magnified by the fact that the language of some BITs, especially of those earlier treaties, are relatively vague and broadly-defined, leaving arbitrators with rather unrestricted discretion in interpretation and application. Secondly, thefacts that ISDS cases are heard by arbitral tribunals constituted ad hoc and there is no strict doctrine of precedent in arbitration lead to the widespread conflicts in arbitral awards. In practice, different tribunals sometimes have different conclusions even on the same standards drawn from the same investment treaty. For example, regarding the “fair and just treatment” under the North American Free Trade Agreement (NAFTA), in S.D.Myers, Inc. v. Canada the tribunal held that this provision cannot be read in the vacuum, but should be interpreted with reference to other international treaties, while in Metalclad Corporation v. United Mexican State, another tribunal took the view that the so-called “fair and just treatment” should be independent of the custom international laws and means the host State should provide extra fairness and justness to the investors. Thirdly, the ISDS arbitral awards are normally final with verylimited appeal and review mechanisms. For example, in an arbitration case administered under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (“ICSID”), the annulment proceeding can be brought under Art.52 of the ICSID in extremely limited situations that only relate to the procedural aspects. The restricted access to appeal and review further exacerbates the consistency and coherence in the ISDS arbitral awards. Besides, in respect of the arbitrators, under the current ISDS mechanism, there is no code that may regulate the arbitrators’ conduct and no mechanism to hold them accountable for any misconduct, which endangers the impartiality and independency of the arbitrators. Moreover, with respect to the procedural matters, ISDS cases may involve increasingly high costs and lengthy proceedings and etc, which cause unnecessaryburden upon the parties, especially from the claimant/investor’s perspective. These concerns are all negatively affecting the legality and effectiveness of the ISDS mechanism.但是近年来，目前通行的ISDS机制的问题日渐彰显，其中尤为突出的问题在于投资仲裁的结果严重缺乏一致性。