论国际投资条约仲裁的正当性缺失及其矫正

随着投资条约仲裁案件不断攀升,国际投资法以及投资条约仲裁凸显其重要性。但由于投资争议的特殊性、有关实体法的模糊或缺失、程序法的缺陷,出现了投资条约仲裁的正当性危机。实际上危机一说有夸张之嫌。经过制度化的改良,如通过增强仲裁程序透明度、允许法庭之友参与仲裁程序、合并审理、遵循先例、加强投资条约仲裁的公共功能等,投资条约仲裁制度的正当性缺失可在相当程度上得以矫正。同时,在国际投资实践中还应该细化投资条约的核心内容、限制管理国家风险、推动ADR和DPPs,以有效地防止争议发生和降低争议解决成本。     

Why we should not believe every lesson Andrew Moravcsik teaches us: A response

This article is a response to Andrew Moravcsik’s “What Can We Learn from the Collapse of the European Constitutional Project?”, published in No. 2, Vol. 47 (2006) of the PVS. In our reply we focus on three main points. First, we argue that Moravcsik’s apologia of the status quo does not convince in light of the challenges that a European Union currently with 27 member states and increasing heterogeneity is facing. Second, we discuss his causal chain model linking participation, deliberation and political legitimacy. We argue that Moravcsik confuses causality with conditionality. By doing so, he exaggerates claims of normative political science about the causal relationship between participation, deliberation and legitimacy, and makes it an unjustifiably easy target for critique. Third, we critically examine Moravcsik’s notion of democracy in order to show that his view of democracy as guaranteeing “certain social goods” brings about the risk of producing a theory of democracy without democracy.