中欧投资协定投资者与国家争端解决条款设计——基于条款价值的考量

当前,投资者与国家争端解决(ISDS)机制面临巨大挑战,欧盟提出建立国际投资法院机制,中国正在考虑构建“一带一路”争议解决机制。在此情况下,中欧全面投资协定中的ISDS条款应该采用何种ISDS机制?通过对中国与欧盟成员国缔结的双边投资协定及其实践的回顾,本文发现,ISDS条款具有三方面的价值:作为附属性质的争端解决条款,作为对投资者程序性权利加以保护的实体性条款,以及构建国际话语权的附加价值。从当前欧盟的条约实践来看,欧盟似乎迫切希望通过双边谈判推动多边投资法院的构建,而忽略争端解决条款对于解决未来缔约双方相关争议的基本功能。中欧全面投资协定中的ISDS条款原则上可以引入投资法庭机制,但是,一方面不应完全排斥其他ISDS机制;另一方面,应当简化制度设计,使其成为一个确实能够在双边层面有助于争议解决的有效机制。

On the Design and Value of the ISDS Clause in the China-EU Investment Agreement

At present,the Investor-State Dispute Settlement(ISDS)mechanism is faced with great challenges.The EU is proposing the establishment of the Investment Court System(ICS),while China is considering the setup of a dispute settlement mechanism for the Belt and Road Initiative,which has raised the question as to the formulation of the ISDS clause in the ongoing China-EU Comprehensive Investment Agreement.After a review of all the existing investment treaties concluded between China and the EU Member States,this paper finds out that the values of the ISDS clause lie in that it could act as subsidiary dispute settlement provisions,as substantive provisions that protect procedural rights of investors,and as an added value in constructing international discourse of the contracting parties.Seen from the treaty practice of the EU,it seems that it is eager to propose the multilateral ICS through bilateral negotiations.However,it has neglected the basic function of dispute settlement provisions to effectively resolve relevant disputes between the contracting parties.This paper argues that as a principle,the ICS could be introduced into the ISDS clause in the ongoing China-EU Comprehensive Investment Agreement.However,the clause should not completely exclude other ISDS mechanisms.In addition,the ICS should be simplified to make it an effective mechanism that can practically contribute to the settlement of disputes at the bilateral level.