Research On The Issue Of Public Interest Protection In International Investment Treaty Arbitration

With the deepening process of economic globalization, investment liberalization, the rapid development of transnational investments, and the high-speed growth of international investment treaties and arbitration, more and more theoretical researchers and practitioners have focused on the field of the arbitration by ICSID. Today China has become one of the most active area of investment in the world, What’s more, established the second bilateral network of investment treaties in the world. At the same time, China’s overseas investors have begun to actively seek the ICSID arbitration mechanism to solve international investment disputes abroad; the international investment arbitration cases of foreign investors using ICSID mechanism for our country government have emerged. Investment disputes between the foreign investors and host countries, often involved in the public interests and public policies of host countries. Protecting the balance between private interests of foreign investors and public interests of host is the eternal theme in international investment law, especially under the background of the practice of arbitration of recent international investment treaties,and disregard for the protection of public interests of host countries and the one-sided emphasis on protecting the interests of foreign investors,the protection problem of public interests of the host countries is important for our country actively to use the dispute settlement system of international investment in the research of the arbitration of international investment treaties. Not only is beneficial to the development and improvement of international investment dispute settlement mechanism but also can promote maximization of the public interests, and balance public interests of the host countries and private interests of foreign investors roughly.This paper studies the disadvantages of the concrete system of protecting public interests of the host country and the host country BITs about the terms of the jurisdiction of the arbitration and the terms of affecting the discretion of the arbitration tribunal in ICSID arbitral systems based on theories of public interests and through the empirical research approach, proposes establishing or reconstructing an effective settlement mechanism of investment disputes to protect the public interests of the host country; And on basis of analyzing the arbitration practice of international investment treaties and the content of bilateral investment treaties in our country, and from the perspective of conducive to public interests of China’s social, puts forward the proposal of the revising and improving the terms of our country BITs about jurisdiction and the terms of the arbitration tribunal to exercise discretion.The first part of this article is basis on theories of the public interests, which further studies the relation between definitions, characteristics and standards of public interests and personal interests, national interests, public interests and government interests, based on this, advances "five standards" of the order of the rank of the value of public interests and the related interests, which is a theoretical foundation for dealing with the relationship of public interests of the host country and private interest of investors in the arbitration of international investment treaties. In the third section, summarily analysis on the main of the identification, recognized standard, factors of influencing the protection of public interests of the host country of the field of the arbitration of international investment treaties, and the conflict and coordination problems between public interests of the host country and private interests of investors, put forward the main factors of influencing protections of public interests of the host country in the arbitration of international investment treaties are arbitration’s jurisdiction and discretion of disputes of the international investment Concrete. One is the international investment arbitration system’s influence on the protection of public interests of the host countries; The other is the influence of the protection of public interests of the host country are the clause about arbitration jurisdiction of the international investment treaties signed by the host country and the terms of influencing Arbitration discretion. Later chapters mainly study from those two aspects.In this paper, the second part studies the problem of the ICSID arbitration mechanism and protection of public interests of the host country. First of all, through studying the appointment of arbitrators of the ICSID arbitration mechanism, application of law, the confidentiality of the program, amicus curiae, expansion of jurisdiction and so on, putting forward the current ICSID system is not conducive for the host country to protect public interests; On this basis, the reason that the ICSID system is not conducive for the host country to protect public interests is analyzed, as a result the ICSID arbitral system has the characteristics of commercial arbitration mechanism, is not suitable for deciding disputes of international investment involving the wide public interests of the host countries; Then, starting from the characteristics of international investment disputes, combining the theories of public interests, analyzing and judging the nature of the arbitration mechanism of international investment treaties, we can put that we should build an independent international investment dispute settlement mechanism, which is not only independent to the international arbitration between countries of public interests disputes between equal national subjects, but also independent to International commercial arbitration of pure commercial private interests of equal private subject, the nature is Similar to the international investment court of domestic administrative court.The third part of this essay deals with the clauses relating to jurisdiction issue and provisions relating to discretionary power of the arbitration tribunal and it also does some research on the protection of public interests of the host countries. In this part the author will use positive approach to categorize in accordance with clauses which will impacting the jurisdiction of ICSID (i.e. acceptance of ICSID jurisdiction, definition clauses, MFN clauses), clauses which will impact the discretionary power of CSID (i.e. the preamble, the equal treatment clauses and the core interests exemption clauses). Based on the abovementioned, the author will propose an opinion: the host countries should set up BITs clauses based on its own economic and social developments. Firstly, the host countries should not let two much power out of its control regarding the jurisdiction clauses, if not, they will totally or partially lose their ability to protection their own public interests; Secondly, the host countries should not grant too much promises towards foreign investors and especial those promises which are not fit with their own economic and social developments. This part also gives some suggestions on how to set up BITs clauses and how to protect public interests in their own countries.The last part will put all the issues in a unique Chinese context regarding some ICSID arbitration cases involving China on a positive basis. The dissertation provides suggestions on how to negotiate bilateral investment agreements for China, with heavy analysis on the jurisdiction clauses and the provisions relating to the discretionary power of the arbitration tribunals, those suggestions also provide us insights on how to protect the public interests for China.